EEOC ENFORCEMENT GUIDANCE ON PSYCHIATRIC DISABILITIES
FACT SHEET
People with psychiatric disabilities often experience employment discrimination based on myths, fears, and stereotypes. In an effort to relieve some of the stigma and misunderstandings associated with psychiatric disabilities, the EEOC issued Enforcement Guidance to provide answers to the numerous questions posed by people with psychiatric disabilities and employers. Here are some highlights from the guidance.
The highlights are meant to serve as a quick reference. They should not be used in lieu of a complete reading of the Enforcement Guidance.
DEFINITION OF PSYCHIATRIC DISABILITY
The ADA defines disability as a physical or mental impairment that substantially limits a major life activity; a record of such an impairment; or being regarded as having such an impairment.
Examples of Impairments: major depression, bipolar disorder, anxiety disorders, obsessive compulsive disorder, post-traumatic stress disorder, schizophrenia, and personality disorders, but not traits or behaviors like irritability, chronic lateness, or poor judgment.
Examples of Major Life Activities: learning, thinking, concentrating, interacting with others, sleeping.
Substantial Limitation: means that a person with a disability cannot perform a major life activity the way the average person in the general population can perform the same activity.
Who says? You do not need expert testimony to prove a substantial limitation. Credible testimony from the person with the disability, family, friends, or co-workers may be enough.
What about medication? Use of medication should not be considered when deciding whether an impairment is substantially limiting.
How long? An impairment which lasts for more than several months and significantly restricts a major life activity is substantially limiting.
Does it have to be continuous? No. Chronic, episodic conditions can be substantially limiting when they are active or have a high chance of recurrence in substantially limiting forms.
DISCLOSURE OF DISABILITY
Questions about history and treatment. Employers may not ask questions on an application or during an interview about history of treatment for mental illness, hospitalization, or the existence of mental or emotional illness or psychiatric disability prior to making a conditional offer of employment.
REASONABLE ACCOMMODATION
Employers must provide reasonable accommodations to qualified individuals with psychiatric disabilities unless doing so would cause an undue burden.
Requesting the accommodation: use plain English. It is not necessary to refer to the "ADA" or use the words "reasonable accommodation."
Who Can Ask? The person with a disability, a family member, friend, health professional, or other representative may make the request.
Does It Need to be in Writing? No, any mode of communication is okay.
When to Ask. You can ask any time during employment. But remember, employers have no duty to accommodate disabilities they don't know about and since accommodations are prospective, employers do not have to excuse past misconduct. Therefore it is best to ask for an accommodation before job performance suffers or conduct problems occur.
Employer's Rights. If the need for an accommodation is not obvious, the employer may ask for reasonable documentation regarding the individual's disability and functional limitations.
Types of Accommodations. Room dividers, partitions, soundproofing or visual barriers between work spaces for persons with disability-related limitations in concentration. Modifying workplace policies like adjusting work schedules or adding breaks. Adjusting supervisory methods such as communicating assignments in writing or by e-mail. Temporary job coaches to assist in training. Reassignment to a different position. These accommodations are not required if providing them causes an undue hardship. Medication monitoring would not be a reasonable accommodation. It is your responsibility to decide about medication and to consider the consequences of not taking it.
CONDUCT
Discipline. An employer may discipline an employee with a disability for violating company policies and conduct standards that are job-related and consistent with business necessity if the employer would impose the same discipline on an employee who does not have a disability.
Examples of Misconduct. Violence or threats of violence, theft, damage or tampering with company property.
DIRECT THREAT
Employers may exclude a person from employment if the person poses a direct threat. This standard must be imposed on persons with disabilities in the same manner it would be imposed on persons without disabilities. Direct threat means a significant risk (not a slightly increased risk) of substantial harm that cannot be eliminated or reduced by a reasonable accommodation. The threat must be actual and imminent, not speculative or remote. Direct threat requires an individualized assessment of the person's ability to safely perform the job.
Impact on Persons with Psychiatric Disabilities. The employer must identify the specific behavior that would pose a direct threat. A history of a psychiatric disability or treatment for one, in and of itself, is not a direct threat.
Examples.
Operating Machinery Under Medication. The employer must determine the nature and severity of the person=s side effects and how those side effects influence his/her ability to safely operate the machinery.
Suicide. In most circumstances a person who has attempted suicide does not pose a direct threat. Any determination by the employer requires an individualized assessment of the person=s ability to safely perform the job. Employers must seek reasonable medical judgments relying on the most current medical knowledge and/or the best available factual evidence concerning the employee.