New ADA Amendment Regulations Protecting People with Mental Health IssuesHR Resource
October 30, 2012 — 2,616 views
New ADA Amendment Regulations Protecting People with Mental Health Issues
Mental health issues are prevalent in the United States today. It is estimated that 26 percent of the population has mental health impairments. Some people are fully aware and have been or are being treated. Others are not. Very small percentages have issues that make them a threat to themselves or others. A huge number are fully employed or seeking employment which means many employers are managing people with diagnosable mental health impairments who are protected by disability legislation. Because these impairments are often subtle they may be overlooked.
People with mental health impairment are protected by ADA and ADA Amendment Act of 2008 which was intended to rectify some interpretation issues of the Americans with Disabilities Act of 1990 by the judicial system and EEOC regulations. It is important that employers, human resource professionals, and managers be aware of the implications of these regulations.
The basic definition of disability is “a physical or mental impairment substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment.” The definition of “major life activities” still includes daily living skills (such as eating, walking, reading, etc.) and has been expanded to include “operation of major bodily functions” (like functioning immune system, digestion, respiratory, etc.). Anyone who has a condition which falls within these parameters is considered a protected person with a disability. As such, employers are accountable for fair hiring, termination, and accommodation practices.
Other changes in the direction of the protection directly impact people with mental health impairments. Impairments that are cyclical or episodic are considered a disability when present. For example, people living with major depression or bipolar disorders experience times when the disorder is not a problem and other times when the disorder is a significant problem. During the times these people are struggling, they are considered disabled and protected. In addition, treatments like medication, behavior modifications, and adaptive equipment which mitigate symptoms do not change the disability reality. So for example, an employee who has schizophrenia which is managed through medication is still considered disabled.
In the past, when employers were confronted with an employee with a possible disability the immediate concern was substantiating the claim. The new legislation dictates that disability determination is done more quickly by individual assessment by comparison with the general population but in most cases not requiring scientific or medical documentation. Employers are to focus instead on reasonable accommodations. So for example, an employee presents with difficulty focusing and becoming agitated with the noise of a piece of equipment in the assigned work area. The employer’s primary concern is reasonable accommodations, like providing head phones or moving the employee’s work space. The Job Accommodations Network (http://askjan.org) provides help in determining reasonable accommodations.
As a result of the amendment and subsequent EECO regulation changes, businesses (with 15 or more employees) are being directed to move from trying to prove and document the disability to focusing on reasonable accommodations. When confronted with hiring or termination of an individual who may have a mental health issue, concentrate on the job description and performance standards. If a job candidate has marginal experience and a possible mental health issue, focus on the lack of experience as reason for not hiring.
It is imperative that employers with 15 or more employees follow the standards set by ADAAA 2008 and the resulting new EECO regulations. Carefully document all actions in regard to hiring, terminating, and making accommodations. Provide training to front line management staff about recognizing accommodation requests. Finally, if there is concern about the safety of an employee or the safety of other employees, take action to ensure safety. Thoroughly document all actions taken.