Mental Disabilities and the ADA

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Mental Disabilities and the ADA: Questions and Answers to Employment Issues Prepared for NAMIOhio by the Ohio Legal Rights Service Revised September 2003 The information provided in any OLRS publication is not a substitute for legal advice. You should consult with a lawyer concerning your rights in a specific case. Contact your local bar association or visit the Ohio State Bar Association Web site to find a lawyer in your area. Contents What employers are covered by the Americans With Disabilities Act (ADA)? What employment activities are covered by the ADA? Is everyone with a psychiatric diagnosis covered by the ADA? Can a person with a psychiatric diagnosis be excluded from coverage for other reasons? Does the ADA protect people who do not have disabilities but have a relationship to or association with a person with a disability? Can a potential employer make inquiries about an applicant's disabilities? Does a mental health consumer lose the right to get a reasonable accommodation later if the consumer fails to disclose the existence of a disability during the hiring process? Once a mental health consumer has been offered a job, can the employer require a "post-offer medical examination?" Does an employer have the right to require documentation of the employee's disability and the need for accommodations? What is a reasonable accommodation? What kinds of actions are required to make reasonable accommodations? Are there limitations on the duty to provide accommodations to employees? Does the ADA protect confidentiality? Can the employer or the employer's health insurer deny employees all health insurance based on a history of mental illness? How can I enforce my rights under the ADA? Psychiatric Disabilities, Employment, and the Americans with Disabilities Act: Accommodations for People With Psychiatric Disabilities This booklet is protected by copyright under United States law and by international copyright laws and treaty provisions. You may copy and distribute the work provided that you use the work for personal, noncommercial use; do not add the work to a collection or use it with any other text, photographs, artwork, etc; do not modify or alter the work in any way or delete or modify any copyright; and do not publish or post all or any part of the work on any Internet site or in or on any other media without obtaining the prior written consent of Ohio Legal Rights Service. Copyright © 2003 Ohio Legal Rights Service. All rights reserved. What employers are covered by the Americans With Disabilities Act (ADA)? Private employers, state and local government employers, employment agencies and labor unions with 15 or more employees are covered. (Federal employees and employees of federal contractors may be covered under a different law, the Rehabilitation Act of 1973. This Act has some different requirements, including a 45 day time limit for filing complaints about rights violations.) Return to top What employment activities are covered by the ADA? The ADA prohibits discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment. It applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment related activities. Return to top Is everyone with a psychiatric diagnosis covered by the ADA? No. The ADA has a two-part definition of "individual with a disability." First, the person must have a physical or mental impairment. This can include "emotional or mental illness." Second, the impairment must result in a substantial limitation in one or more major life activities such as thinking, concentrating, learning, working or caring for oneself. Therefore, not everyone with a DSM-IV disorder will be covered by the ADA, since some disorders are short-term in nature or result in only minor limitations in functioning. It is also possible that a person could establish an emotional or mental disability without a DSM diagnosis, as long as the condition meets the requirements of the ADA. Return to top Can a person with a psychiatric diagnosis be excluded from coverage for other reasons? There are several exclusions from coverage. People who use controlled substances for unlawful purposes, including those who take any prescribed drug without the required supervision of a licensed health care professional, do not have a disability under the ADA. However, the ADA protects people who participate in or have completed a supervised drug rehabilitation program and no longer use illegal drugs. The ADA also excludes sexual compulsions, preferences and disorders; compulsive gambling, kleptomania, or pyromania; or psychoactive substance use disorders resulting from current use of illegal drugs. Alcoholism, but not on-the-job drinking or working while alcohol impaired, is a covered disability. People who have disabilities but pose a "direct threat to health and safety" that can not be eliminated by reasonable accommodations are not covered by the ADA. People with mental disabilities can not be excluded based on general, stereotypical assumptions about dangerousness. Any threat must be based on sound medical judgment and objective evidence of factors such as the duration of the risk, the nature and severity of the potential harm, the likelihood that harm will occur, and the imminence of the harm. Of course a person with a disability must be able to perform the essential job functions with or without reasonable accommodations in order to be covered by the ADA. Return to top Does the ADA protect people who do not have disabilities but have a relationship to or association with a person with a disability? Yes. The ADA prohibits discrimination based on "relationship or association" in order to protect people from actions based on unfounded assumptions that their relationship to a person with a disability would affect their job performance, and from actions caused by bias or misinformation concerning disabilities. For example, the ADA would protect a person with a disabled spouse or child from being denied employment because of an employer's unfounded assumption that the applicant would use excessive leave to care for the disabled spouse or child. It would also protect a person who does volunteer work for people with AIDS from a discriminatory employment action motivated by that relationship or association. Return to top Can a potential employer make inquiries about an applicant's disabilities? Employers may not ask on job applications or during job interviews any questions about the presence or nature of a disability. Instead, the employer should define the essential functions and conditions of the job and then ask the applicant about his or her qualifications to perform the job. Employers can ask disability neutral questions such as questions about job history, for example, gaps in employment. Return to top Does a mental health consumer lose the right to get a reasonable accommodation later if the consumer fails to disclose the existence of a disability during the hiring process? No. Employees may disclose that they have a disability after many years on the job and request a reasonable accommodation at that time. Of course an employer is only required to make accommodations for known disabilities of applicants or employees. Return to top Once a mental health consumer has been offered a job, can the employer require a "post-offer medical examination?" Yes, as long as all applicants in the job category, not just those suspected of having a disability, are required to be examined. After a "conditional job offer" has been extended there are no limits on inquiries about the presence or nature of a disability. However, the employer may only withdraw a job offer if the applicant cannot perform the essential functions of the job with or without reasonable accommodations. Return to top Does an employer have the right to require documentation of the employee's disability and the need for accommodations? Once on the job, the employer may ask questions that are "job-related and consistent with business necessity." When an employee asks for reasonable accommodations, the employer is entitled to information to substantiate that request and to work out an effective accommodation. Return to top What is a reasonable accommodation? Reasonable accommodation is a modification or an adjustment to a job or work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. It includes adjustments in policies or procedures and other modifications to assure that qualified people with disabilities have rights and privileges in employment equal to those of nondisabled employees. Return to top What kinds of actions are required to make reasonable accommodations? Examples of reasonable accommodation include making facilities readily accessible and usable by a person with a disability; job restructuring; modifying work schedules; acquiring or modifying equipment; reassigning an employee to a vacant position for which the person is qualified; or providing private or quiet work space. Attached is a list of possible reasonable accommodations for people with psychiatric disabilities. Return to top Are there limitations on the duty to provide accommodations to employees? Yes. Employers are not required to lower quality or quantity standards in order to make an accommodation, nor are they required to provide personal use items such as glasses or hearing aids. Employers are not required to create new job positions, nor to find a position for an applicant who is not qualified for the position sought. In addition, an employer is not required to make an accommodation if it would impose an "undue hardship" on the business. "Undue hardship" is defined as "an action requiring significant difficulty or expense" when considered in light of: the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the business. Generally, a large business would be expected to make greater effort or spend more money to make accommodations than a small business. Regular and predictable attendance is commonly viewed as a minimum standard of performance; although employers might be required to tolerate some additional absences for treatment needs, such as short-term hospitalization. There are other laws, such as the Family Medical Leave Act (FMLA) and state workers' compensation laws that can provide additional rights or restrictions on job leave or absences. Return to top Does the ADA protect confidentiality? Yes. Any information about an employee's disability must be stored on separate forms and treated as a "confidential medical record." The information must be stored separately from other personnel files where only specifically designated people can access it. However, there are five exceptions to the confidentiality requirements: Supervisors and managers may be informed about necessary work restrictions and other necessary accommodations. First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment, or if any special procedures are required in case of fire or other evacuations. Government officials should be provided access to information when investigating disability anti-discrimination compliance. Relevant information may be provided to workers' compensation offices. Relevant information may be provided to insurance companies when the company requires a medical examination to provide health or life insurance to employees. The information should not be shared with anyone else without the explicit consent of the person with a disability. Return to top Can the employer or the employer's health insurer deny employees all health insurance based on a history of mental illness? No. Employers may not enter into or participate in any contractual relationship that has the effect of discriminating against employees with disabilities. If the insurer discriminates, the employer must provide other insurance that is comparable to insurance coverage of employees who do not have disabilities. However, an individual with a "pre-existing condition," such as mental illness, may be denied coverage for that condition as long as other employees likewise are denied coverage for their pre-existing condition. Return to top How can I enforce my rights under the ADA? A person should always consider trying to resolve disputes with the employer before taking formal action. Sometimes questions about the existence of a disability or the necessity for an accommodation can be resolved by agreeing to provide documentation to the employer. If informal measures fail, federal law requires that the person with a disability file an administrative complaint before a lawsuit can be filed. An administrative complaint with the U.S. Equal Employment Opportunity Commission (EEOC) must be filed within 300 days of the date the violation occurred. Ohio law also allows the filing of a complaint with the Ohio Civil Rights Commission (OCRC). This must be done within six months of the date the violation occurred. If either agency investigates and determines that there has been a violation, the agency can negotiate a resolution or sue in court. If the agency fails to negotiate or concludes that there is no discrimination, it will issue a letter to the complainant who may then sue in court. Possible remedies include: hiring, reinstatement, back pay, court orders to stop discrimination, or orders to provide reasonable accommodation. Compensatory damages may be awarded for actual monetary losses and for future monetary losses, mental anguish, and inconvenience. Punitive damages may be awarded as well, if an employer acts with malice or reckless indifference. Attorney's fees may also be awarded. Under some circumstances, employment contracts, e.g., union agreements, can limit the action an employee can take. For example, if carefully worded, an employment agreement might require that discrimination disputes be resolved through binding arbitration. The administrative agencies can be contacted at: U.S. Equal Employment Opportunity Commission Cleveland District Office 1375 Euclid Ave., Room 600 Cleveland, Ohio 44115 Telephone: 216-522-2001 Cincinnati District Office 525 Vine Street, Suite 810 Cincinnati, Ohio 45202 Telephone: 513-684-2851 Call to find out which office covers your county. There are six regional offices; call to find out where to file. Ohio Civil Rights Commission Central Office 1111 East Broad Street, Suite 301 Columbus, Ohio 43215 1-614-466-9353 Return to top Psychiatric Disabilities, Employment, and the Americans with Disabilities Act: Accommodations for People With Psychiatric Disabilities The items on this list do not necessarily reflect "reasonable accommodations" as defined by the ADA. The source of this list is from the President's Committee on Employment of People With Disabilities, 1993. Flexibility Providing self-paced workload and flexible hours Allowing people to work at home, and providing necessary equipment Providing more job-sharing opportunities Modifying job responsibilities Providing supported employment opportunities Keeping the job open and providing a liberal leave policy (e.g., granting up to 2 months of unpaid leave, if it does not cause undue hardship on the employer) Providing back-up coverage when the employee needs a special or extended leave Providing the ability to move laterally, change jobs, or change supervisors within the same organization so that the person can find a job that is a good fit Providing time off for professional counseling Allowing exchange of work duties Providing conflict resolution mechanisms Supervision Providing written job instructions Providing significant levels of structure, one-to-one supervision that deals with content and interpersonal skills Providing easy access to supervisor Providing guidelines for feedback on problem areas, and developing strategies to anticipate and deal with problems before they arise Arranging for an individual to work under a supportive and understanding supervisor Providing individualized agreements Emotional Supports Providing ongoing on-the-job peer counseling Providing praise and positive reinforcement Being tolerant of different behaviors Making counseling/employee assistance programs available for all employees Allowing telephone calls during work hours to friends or others for needed support Providing substance-abuse recovery support groups and one-to-one counseling Providing support for people in the hospital (e.g., visits, cards, telephone calls) Providing an advocate to advise and support the employee Identifying employees who are willing to help the employee with a psychiatric disability (mentors) Providing on-site crisis intervention services Providing a 24-hour hot-line for problems Providing natural supports Physical Accommodations at the Workplace Modifying work area to minimize distractions Modifying work area for privacy Providing an environment that is smoke-free, has reduced noise, natural light, easy access to the outside, and is well-ventilated Providing accommodations for any additional impairment (e.g., if employees with psychiatric disabilities have a visual or mobility impairment, they may need such accommodations as large print for written materials, 3-wheel scooter, etc.) Wages and Benefits Providing adequate wages and benefits Providing health insurance coverage that does not exclude pre-existing conditions, including psychiatric disabilities, HIV, cancer, etc. Permitting sick leave for emotional well-being, in addition to physical well-being Providing assistance with child-care, transportation, care for aging parents, housing, etc. Providing (specialized) training opportunities Dealing With Coworkers' Attitudes Providing sensitivity training for coworkers Facilitating open discussions with workers with and without disabilities, to articulate feelings and to develop strategies to deal with these issues Developing a system of rewards for coworkers without disabilities, based on their acceptance and support for their coworkers with disabilities Return to top Related Topics: Community Integration Disability Rights and Laws Employment/Vocational Rehabilitation Mental Health OLRS Publications