In recognition of May as Mental Health Month, employers should consider taking time to review their obligations under the Americans with Disabilities Act. Employers should review their policies and procedures for providing reasonable accommodations to employees whose mental disabilities affect their abilities to perform the essential functions of their jobs. The following are answers to common questions concerning reasonable accommodations and other requirements pertaining to employees and applicants with mental illnesses.
Q: What laws protect applicants and employees with mental illnesses?
A: The federal Americans with Disabilities Act (ADA) prohibits employers with 15 or more employees from discriminating against qualified applicants and employees because of a physical or mental disability. Under the law, an individual is considered to have a disability if he or she has: (1) an impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) is regarded as having such an impairment. Individuals with intellectual disabilities, emotional or mental illness, or specific learning impairments may qualify as disabled under the ADA if they meet one of these three criteria.
Additionally, several states have enacted their own non-discrimination laws that cover disabled employees and applicants. Certain state laws define disability differently and/or apply to employers with fewer than 15 employees. Check your state law to ensure compliance.
Q: Is there a list of all mental health impairments that would qualify as a disability under the ADA?
A: Because determining whether an impairment is considered a disability under the ADA is generally done on a case-by-case basis, it is difficult to create one list of all qualifying impairments.
Q: What are my company's obligations when an employee's mental illness qualifies as a disability?
A: The ADA requires that employers provide a reasonable accommodation to a qualified applicant or employee with a disability, unless doing so would cause undue hardship to an employer's business operations. A reasonable accommodation is any modification or adjustment to the work environment that will enable a qualified applicant to participate in the application process, or help an employee with a disability perform the essential functions of the job.
If an employee requests a reasonable accommodation, or puts an employer on notice of the need for a change at work due to a medical condition, the employer should begin an interactive process, or dialogue, with the employee to identify an appropriate reasonable accommodation.
Q: What are some examples of reasonable accommodations for those with mental illnesses?
A: Individuals with mental illnesses may need accommodations to help them:
- Maintain stamina and concentration during the day
- Stay organized and meet deadlines
- Cope with memory issues
- Work effectively with supervisors
- Interact with co-workers
- Handle stress
- Maintain attendance
- Manage change
The Job Accommodation Network (JAN), a service of the U.S. Department of Labor's Office of Disability Employment Policy, provides employers with possible effective accommodations for individuals with mental disabilities. These include, but are not limited to:
- Allowing flexible work arrangements
- Providing a job coach or mentor
- Encouraging the use of stress management techniques
- Providing checklists, electronic organizers, and other aids
- Making physical changes to the workplace, such as soundproofing, or creating visual barriers
- Providing sensitivity training to coworkers and supervisors
- Allowing telephone calls during work hours to doctors and others for needed support
- Referring individuals to an employee assistance program (EAP), if applicable
Q: An employee asked for a reasonable accommodation for a condition that may qualify as a mental disability under the ADA. May I ask for documentation from the employee's healthcare provider?
A: An employer may generally ask the individual for documentation regarding his/her disability and functional limitations, as long as the information requested is job-related and consistent with business necessity. Employers may also ask healthcare providers to provide recommendations for possible accommodations. In order to facilitate creating appropriate accommodations, employers should maintain accurate and up-to-date job descriptions listing essential job functions, which can be reviewed when assessing accommodations.
Q: During a performance review meeting, an employee revealed that she has a mental illness that is affecting her work. Do I have to take this into consideration when rating her performance?
A: The employee's rating should reflect the employee's performance regardless of what role, if any, the disability may have played. However, when the employer learns of the employee's mental illness, the employer should begin the interactive reasonable accommodation process with the employee. Through a discussion with the employee, the employer should evaluate whether the disability impacts the employee's performance and whether a reasonable accommodation could address the problem.
Q: During a disciplinary meeting, an employee informed me that a mental illness caused his misconduct. Can the employee still be disciplined?
A: If an employee violates a conduct rule that is job-related and consistent with business necessity, and all employees are held to the same standard, an employer may discipline the employee for their misconduct. Examples of workplace rules that are generally considered job-related and consistent with business necessity include, but are not limited to, rules prohibiting violence, threats of violence, stealing, or destruction of property. Employers should consider consulting legal counsel if they have specific questions regarding disciplinary action for misconduct by an employee with a mental disability.
Q: May I ask an employee who is having performance or conduct issues to undergo a medical examination?
A: Generally, an employer may request medical information when it is job-related and consistent with business necessity. An employer must have a reasonable belief, based on objective evidence, that an employee is either unable to perform an essential function of the job or will pose a “direct threat” because of a medical condition. The scope and manner of any inquiry or medical examination must be limited to information necessary to determine whether the employee is able to perform the essential functions of the job or can work without posing a direct threat. Employers should consider consulting legal counsel before requesting a medical examination from an applicant or employee.
Q: An employee who has post-traumatic stress disorder asked to bring a support animal to work. Do I have to allow this as a reasonable accommodation?
A: Generally, allowing an employee to bring a support animal is a reasonable accommodation. If it is the only effective accommodation available, the employer must allow it, unless it would result in undue hardship to the employer's business. However, if there is more than one effective accommodation, the employer isn't required to choose the one that the employee wants. The employer may choose among reasonable accommodations as long as the chosen accommodation is effective in removing the workplace barrier that is impeding the individual with a disability. During the interactive process, the employer may offer alternative suggestions for reasonable accommodations.
Q: An employee asked for permission to smoke medical marijuana at work to accommodate his mental illness. Do I have to provide this accommodation?
A: The ADA expressly provides that an employer may prohibit illegal drug use in the workplace, and marijuana is considered an illegal drug under federal law. Additionally, while 20 states and the District of Columbia currently permit the use of medical marijuana, and two states (Colorado and Washington) also permit the recreational use of marijuana, no state requires employers to allow marijuana in the workplace or during work hours. Thus, regardless of the state, employers may ban both recreational and medicinal marijuana on the job and enforce zero-tolerance policies as to use, possession, or impairment in the workplace and on company property.
Conclusion:
The ADA and many state laws require employers to provide reasonable accommodations to qualified individuals with physical or mental disabilities so long as doing so does not impose an undue hardship on the employer's business operations. Employers should understand their rights and responsibilities under these laws and train supervisors on how to handle requests for reasonable accommodations from individuals with disabilities.