ACCOMMODATION OF MENTAL IMPAIRMENTS UNDER THE ADA

According to a 2011 publication of the Centers for Disease Control and Prevention (CDC), “Mental illnesses account for a larger proportion of disability in developed countries than any other group of illnesses, including cancer and heart disease.”  The study noted that an estimated 25% of adults self-reported a mental illness at a projected economic cost of $300 billion as of that date.url

With such a high number of adults impacted by mental illness, it is inevitable that employers will have to deal with workplace accommodations for affected individuals.  The Americans with Disabilities Act Amendments Act (ADAAA) requires employers to provide reasonable accommodations for employees with mental illnesses, just as they would for physical impairments, unless doing so would be an undue hardship for the employer.  The ADAAA does not exhaustively list mental illness conditions that an employer may have to contend with; however, on the short list, employers may be faced with employees suffering from anxiety disorders, obsessive-compulsive disorders, PTSD, personality disorders, and more.

Whatever the disability, the focus should be on the effect of the employee’s condition: Does it limit a major life activity or bodily function?  For example, does the disability affect the individual’s ability to learn, concentrate, communicate, or care for oneself?  If so, it likely adversely impacts a major life activity.  Under the ADAAA, mitigating measures, such as medication, that “control” an impairment do not change the conclusion that an employee has a disability.

To be required to accommodate a disability, an employer must first be put on notice of the disability.  Unless the employer reasonably believes, based on objective facts, that the employee cannot perform essential job functions because of a medical condition, or that the employee has a medical condition that could threaten the health and safety of the employee or others, the employer should not inquire as to a possible mental disability.  Employers may ask if the applicant/employee can perform the essential functions of the job.  Each situation is very fact-specific, and, except in an emergency, competent and experienced legal counsel should be consulted before questioning an employee about a possible undisclosed condition.

Once it is clear that an accommodation is appropriate, the employer should work with the employee and his/her medical provider to determine whether an accommodation that addresses the limitations caused by the disability but allows the employee to perform the essential functions of his or her job exists.  The EEOC has identified a non-exhaustive list of accommodations, such as time off from work or a modified work schedule, physical changes to the workplace (such as soundproofing or erecting partitions), or adjusting supervisory methods (e.g., providing additional training or a job coach or communicating with the employee primarily by email), that could constitute an acceptable accommodation for a disability caused by a mental illness, while allowing the employee to perform essential job functions.  Again, competent legal counsel can help you navigate the treacherous waters of the ADAAA.

Jami Suver focuses her practice in the area of labor and employment law.
 
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