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Title I of the Americans with Disabilities Act of 1990 prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.
Those with 15 or more employees
Breathing, seeing, hearing, sitting, standing, walking, learning, lifting, bending, reading, thinking, performing manual tasks, working, circulatory and reproductive functions, among many other activities.
A substantial impairment in a major life activity that would substantially limit that major life activity.
Major life activities that can be impaired by a mental impairment include but are not limited to
One in four adults suffers from a diagnosable mental illness in any given year (National Alliance on Mental Health, 2013). In tech, 50% of individuals have sought treatment for mental illness, according to one study (Finkler, 2015). This represents a significant percentage of your human talent pool. And those suffering with mental illness include some of the most competent and productive employees. Despite these statistics, mental illness is not being talked about in the tech community. Only 26% of those working in tech are aware of their company’s mental health resources and how to seek help (Finkler, 2015). And only 35% know of the mental health care options available through their employer. Addressing employee needs can help you reduce turnover, absenteeism, and increase productivity within your organization. The intention of this document is to offer a general understanding of your legal responsibilities.
Purpose: The following handbook consists of compiled guidelines for executives, HR professionals and other employers to reference when considering legal obligations to employees with mental health impairment, including direction from the Equal Employment Opportunity Commision (EEOC) regarding the Americans with Disabilities Act (ADA).
The Americans with Disabilities Act of 1990 (ADA) makes it unlawful to discriminate in employment against a qualified individual with a disability. The ADA also outlaws discrimination against individuals with disabilities in State and local government services, public accommodations, transportation and telecommunications. These guidelines explain the part of the ADA that prohibits job discrimination. This part of the law is enforced by the U.S. Equal Employment Opportunity Commission and State and local civil rights enforcement agencies that work with the Commission.
Job discrimination against people with disabilities is illegal if practiced by:
The part of the ADA enforced by the EEOC outlaws job discrimination by:
Another part of the ADA, enforced by the U.S. Department of Justice, prohibits discrimination in State and local government programs and activities, including discrimination by all State and local governments, regardless of the number of employees, after January 26, 1992.
Because the ADA establishes overlapping responsibilities in both EEOC and DOJ for employment by State and local governments, the Federal enforcement effort will be coordinated by EEOC and DOJ to avoid duplication in investigative and enforcement activities. In addition, since some private and governmental employers are already covered by nondiscrimination and affirmative action requirements under the Rehabilitation Act of 1973, EEOC, DOJ, and the Department of Labor will similarly coordinate the enforcement effort under the ADA and the Rehabilitation Act.
The ADA makes it unlawful to discriminate in all employment practices such as:
The ADA prohibits an employer from retaliating against an applicant or employee for asserting his rights under the ADA. The Act also makes it unlawful to discriminate against an applicant or employee, whether disabled or not, because of the individual’s family, business, social or other relationship or association with an individual with a disability.
Title I of the ADA protects qualified individuals with disabilities from employment discrimination. Under the ADA, a person has a disability if he has a physical or mental impairment that substantially limits a major life activity. The ADA also protects individuals who have a record of a substantially limiting impairment, and people who are regarded as having a substantially limiting impairment.
To be protected under the ADA, an individual must have, have a record of, or be regarded as having a substantial, as opposed to a minor, impairment. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, breathing, performing manual tasks, walking, caring for oneself, learning or working.
An individual with a disability must also be qualified to perform the essential functions of the job with or without reasonable accommodation, in order to be protected by the ADA. This means that the applicant or employee must:
The ADA does not interfere with your right to hire the best qualified applicant. Nor does the ADA impose any affirmative action obligations. The ADA simply prohibits you from discriminating against a qualified applicant or employee because of his/her disability.
Essential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodation. You should carefully examine each job to determine which functions or tasks are essential to performance. (This is particularly important before taking an employment action such as recruiting, advertising, hiring, promoting or firing).
Factors to consider in determining if a function is essential include:
Your judgment as to which functions are essential, and a written job description prepared before advertising or interviewing for a job will be considered by EEOC as evidence of essential functions. Other kinds of evidence that EEOC will consider include:
Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. For example, reasonable accommodation may include:
Reasonable accommodation also must be made to enable an individual with a disability to participate in the application process, and to enjoy benefits and privileges of employment equal to those available to other employees.
It is a violation of the ADA to fail to provide reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability, unless to do so would impose an undue hardship on the operation of your business. Undue hardship means that the accommodation would require significant difficulty or expense.
Frequently, when a qualified individual with a disability requests a reasonable accommodation, the appropriate accommodation is obvious. The individual may suggest a reasonable accommodation based upon her own life or work experience. However, when the appropriate accommodation is not readily apparent, you must make a reasonable effort to identify one. The best way to do this is to consult informally with the applicant or employee about potential accommodations that would enable the individual to participate in the application process or perform the essential functions of the job. If this consultation does not identify an appropriate accommodation, you may contact the EEOC, State or local vocational rehabilitation agencies, or State or local organizations representing or providing services to individuals with disabilities.
It is not necessary to provide a reasonable accommodation if doing so would cause an undue hardship. Undue hardship means that an accommodation would be unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the business. Among the factors to be considered in determining whether an accommodation is an undue hardship are the cost of the accommodation, the employer’s size, financial resources and the nature and structure of its operation.
If a particular accommodation would be an undue hardship, you must try to identify another accommodation that will not pose such a hardship. If cost causes the undue hardship, you must also consider whether funding for an accommodation is available from an outside source, such as a vocational rehabilitation agency, and if the cost of providing the accommodation can be offset by state or federal tax credits or deductions. You must also give the applicant or employee with a disability the opportunity to provide the accommodation or pay for the portion of the accommodation that constitutes an undue hardship.
It is unlawful to:
You can ask an applicant questions about ability to perform job-related functions, as long as the questions are not phrased in terms of a disability. You can also ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will perform job-related functions.
After a job offer is made and prior to the commencement of employment duties, you may require that an applicant take a medical examination if everyone who will be working in the job category must also take the examination. You may condition the job offer on the results of the medical examination. However, if an individual is not hired because a medical examination reveals the existence of a disability, you must be able to show that the reasons for exclusion are job related and necessary for conduct of your business. You also must be able to show that there was no reasonable accommodation that would have made it possible for the individual to perform the essential job functions.
Once you have hired an applicant, you cannot require a medical examination or ask an employee questions about disability unless you can show that these requirements are job related and necessary for the conduct of your business. You may conduct voluntary medical examinations that are part of an employee health program.
The results of all medical examinations or information from inquiries about a disability must be kept confidential, and maintained in separate medical files. You may provide medical information required by State workers' compensation laws to the agencies that administer such laws.
The provisions of the ADA which prohibit job discrimination will be enforced by the U.S. Equal Employment Opportunity Commission. After July 26, 1992, individuals who believe they have been discriminated against on the basis of their disability can file a charge with the Commission at any of its offices located throughout the United States. A charge of discrimination must be filed within 180 days of the discrimination, unless there is a state or local law that also provides relief for discrimination on the basis of disability. In those cases, the complainant has 300 days to file a charge.
The Commission will investigate and initially attempt to resolve the charge through conciliation, following the same procedures used to handle charges of discrimination filed under Title VII of the Civil Rights Act of 1964. The ADA also incorporates the remedies contained in Title VII. These remedies include hiring, promotion, reinstatement, back pay, and attorney’s fees. Reasonable accommodation is also available as a remedy under the ADA.
The Commission believes that employers want to comply with the ADA, and that if they are given sufficient information on how to comply, they will do so voluntarily.
Accordingly, the Commission conducts an active technical assistance program to promote voluntary compliance with the ADA. This program is designed to help employers understand their responsibilities and assist people with disabilities to understand their rights and the law.
In January 1992, EEOC published a Technical Assistance Manual, providing practical application of legal requirements to specific employment activities, with a directory of resources to aid compliance. EEOC publishes other educational materials, provides training on the law for employers and for people with disabilities, and participates in meetings and training programs of other organizations. EEOC staff also will respond to individual requests for information and assistance. The Commission’s technical assistance program is separate and distinct from its enforcement responsibilities. Employers who seek information or assistance from the Commission will not be subject to any enforcement action because of such inquiries.
The Commission also recognizes that differences and disputes about the ADA requirements may arise between employers and people with disabilities as a result of misunderstandings. Such disputes frequently can be resolved more effectively through informal negotiation or mediation procedures, rather than through the formal enforcement process of the ADA. Accordingly, EEOC will encourage efforts to settle such differences through alternative dispute resolution, providing that such efforts do not deprive any individual of legal rights provided by the statute.
Q. What is the relationship between the ADA and the Rehabilitation Act of 1973?
Q. If I have several qualified applicants for a job, does the ADA require that I hire the applicant with a disability?
Q. One of my employees is a diabetic, but takes insulin daily to control his diabetes. As a result, the diabetes has no significant impact on his employment. Is he protected by the ADA?
Q. One of my employees has a broken arm that will heal but is temporarily unable to perform the essential functions of his job as a mechanic. Is this employee protected by the ADA?
Q. Am I obligated to provide a reasonable accommodation for an individual if I am unaware of her physical or mental impairment?
Q. How do I determine whether a reasonable accommodation is appropriate and the type of accommodation that should be made available?
Q. When must I consider reassigning an employee with a disability to another job as a reasonable accommodation?
Q. What if an applicant or employee refuses to accept an accommodation that I offer?
Q. Can I consider health and safety in deciding whether to hire an applicant or retain an employee with a disability?
Q. Am I required to provide additional insurance for employees with disabilities?
Q. Does the ADA require that I post a notice explaining its requirements?a
Under the ADA, the term “disability” means: "(a) A physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment."
This guidance focuses on the first prong of the ADA’s definition of “disability” because of the great number of questions about how it is applied in the context of psychiatric conditions.
The ADA rule defines “mental impairment” to include “[a]ny mental or psychological disorder, such as … emotional or mental illness.” 6 Examples of “emotional or mental illness[es]” include major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia, and personality disorders. The current edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM) is relevant for identifying these disorders. The DSM has been recognized as an important reference by courts and is widely used by American mental health professionals for diagnostic and insurance reimbursement purposes.
Not all conditions listed in the DSM, however, are disabilities, or even impairments, for purposes of the ADA. For example, the DSM lists several conditions that Congress expressly excluded from the ADA’s definition of “disability.” While DSM covers conditions involving drug abuse, the ADA provides that the term “individual with a disability” does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of that use. The DSM also includes conditions that are not mental disorders but for which people may seek treatment (for example, problems with a spouse or child). Because these conditions are not disorders, they are not
impairments under the ADA.
Even if a condition is an impairment, it is not automatically a “disability.” To rise to the level of a “disability,” an impairment must “substantially limit” one or more major life activities of the individual.
No. Traits or behaviors are not, in themselves, mental impairments. For example, stress, in itself, is not automatically a mental impairment. Stress, however, may be shown to be related to a mental or physical impairment. Similarly, traits like irritability, chronic lateness, and poor judgment are not, in themselves, mental impairments, although they may be linked to mental impairments.
An impairment must substantially limit one or more major life activities to rise to the level of a “disability” under the ADA.
The major life activities limited by mental impairments differ from person to person. There is no exhaustive list of major life activities. For some people, mental impairments restrict major life activities such as learning, thinking, concentrating, interacting with others, caring for oneself, speaking, performing manual tasks, or working. Sleeping is also a major life activity that may be limited by mental impairments.
No. The first question is whether an individual is substantially limited in a major life activity other than working (e.g., sleeping, concentrating, caring for oneself). Working should be analyzed only if no other major life activity is substantially limited by an impairment.
Under the ADA, an impairment rises to the level of a disability if it substantially limits a major life activity. “Substantial limitation” is evaluated in terms of the severity of the limitation and the length of time it restricts a major life activity. The determination that a particular individual has a substantially limiting impairment should be based on information about how the impairment affects that individual and not on generalizations about the condition. Relevant evidence for EEOC investigators includes descriptions of an individual’s typical level of functioning at home, at work, and in other settings, as well as evidence showing that the individual’s functional limitations are linked to his/her impairment. Expert testimony about substantial limitation is not necessarily required. Credible testimony from the individual with a disability and his/her family members, friends, or coworkers may suffice.
An impairment is sufficiently severe to substantially limit a major life activity if it prevents an individual from performing a major life activity or significantly restricts the condition, manner, or duration under which an individual can perform a major life activity, as compared to the average person in the general population. An impairment does not significantly restrict major life activities if it results in only mild limitations.
No. The ADA legislative history unequivocally states that the extent to which an impairment limits performance of a major life activity is assessed without regard to mitigating measures, including medications. Thus, an individual who is taking medication for a mental impairment has an ADA disability if there is evidence that the mental impairment, when left untreated, substantially limits a major life activity. Relevant evidence for EEOC investigators includes, for example, a description of how an individual’s condition changed when s/he went off medication or needed to have dosages adjusted, or a description of his/her condition before starting medication.
An impairment is substantially limiting if it lasts for more than several months and significantly restricts the performance of one or more major life activities during that time. It is not substantially limiting if it lasts for only a brief time or does not significantly restrict an individual’s ability to perform a major life activity. Whether the impairment is substantially limiting is assessed without regard to mitigating measures such as medication.
Yes. Chronic, episodic conditions may constitute substantially limiting impairments if they are substantially limiting when active or have a high likelihood of recurrence in substantially limiting forms. For some individuals, psychiatric impairments such as bipolar disorder, major depression, and schizophrenia may remit and intensify, sometimes repeatedly, over the course of several months or several years.
An impairment substantially limits an individual’s ability to interact with others if, due to the impairment, s/he is significantly restricted as compared to the average person in the general population. Some unfriendliness with coworkers or a supervisor would not, standing alone, be sufficient to establish a substantial limitation in interacting with others. An individual would be substantially limited, however, if his/her relations with others were characterized on a regular basis by severe problems, for example, consistently high levels of hostility, social withdrawal, or failure to communicate when necessary.
These limitations must be long-term or potentially long-term, as opposed to temporary, to justify a finding of ADA disability.
An impairment substantially limits an individual’s ability to concentrate if, due to the impairment, s/he is significantly restricted as compared to the average person in the general population. For example, an individual would be substantially limited if s/he was easily and frequently distracted, meaning that his/her attention was frequently drawn to irrelevant sights or sounds or to intrusive thoughts; or if s/he experienced his/her “mind going blank” on a frequent basis.
Such limitations must be long-term or potentially long-term, as opposed to temporary, to justify a finding of ADA disability.
An impairment substantially limits an individual’s ability to sleep if, due to the impairment, his/her sleep is significantly restricted as compared to the average person in the general population. These limitations must be long-term or potentially long-term as opposed to temporary to justify a finding of ADA disability.
An impairment substantially limits an individual’s ability to care for him/herself if, due to the impairment, an individual is significantly restricted as compared to the average person in the general population in performing basic activities such as getting up in the morning, bathing, dressing, and preparing or obtaining food. These limitations must be long-term or potentially long-term as opposed to temporary to justify a finding of ADA disability.
Some psychiatric impairments, for example major depression, may result in an individual sleeping too much. In such cases, an individual may be substantially limited if, as a result of the impairment, s/he sleeps so much that s/he does not effectively care for him/herself. Alternatively, the individual may be substantially limited in working.
Individuals with psychiatric disabilities may have questions about whether and when they must disclose their disability to their employer under the ADA. They may have concerns about the potential negative consequences of disclosing a psychiatric disability in the workplace, and about the confidentiality of information that they do disclose.
No. An employer may not ask questions that are likely to elicit information about a disability before making an offer of employment. Questions on a job application about psychiatric disability or mental or emotional illness or about treatment are likely to elicit information about a psychiatric disability and therefore are prohibited before an offer of employment is made.
An employer may ask for disability-related information, including information about psychiatric disability, only in the following limited circumstances:
Application Stage. Employers are prohibited from asking disability-related questions before making an offer of employment. An exception, however, is if an applicant asks for reasonable accommodation for the hiring process. If the need for this accommodation is not obvious, an employer may ask an applicant for reasonable documentation about his/her disability. The employer may require the applicant to provide documentation from an appropriate professional concerning his/her disability and functional limitations. A variety of health professionals may provide such documentation regarding psychiatric disabilities including primary health care professionals, psychiatrists, psychologists, psychiatric nurses, and licensed mental health professionals such as licensed clinical social workers and licensed
An employer should make clear to the applicant why the employer is requesting such information, i.e., to verify the existence of a disability and the need for an accommodation. Furthermore, the employer may request only information necessary to accomplish these limited purposes.
Although an employer may not ask an applicant if s/he will need reasonable accommodation for the job, there is an exception if the employer could reasonably believe, before making a job offer, that the applicant will need accommodation to perform the functions of the job. For an individual with a non-visible disability, this may occur if the individual voluntarily discloses his/her disability or if s/he voluntarily tells the employer that s/he needs reasonable accommodation to perform the job. The employer may then ask certain limited questions, specifically:
After making an offer of employment, if the employer requires a post-offer, preemployment medical examination or inquiry. After an employer extends an offer of employment, the employer may require a medical examination (including a psychiatric examination) or ask questions related to disability (including questions about psychiatric disability) if the employer subjects all entering employees in the same job category to the same inquiries or examinations regardless of disability. The inquiries and examinations do not need to be related to the job.
During employment, when a disability-related inquiry or medical examination of an employee is “job-related and consistent with business necessity.” This requirement may be met when an employer has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition. Thus, for example, inquiries or medical examinations are permitted if they follow-up on a request for reasonable accommodation when the need for accommodation is not obvious, or if they address reasonable concerns about whether an individual is fit to perform essential functions of his/her position. In addition, inquiries or examinations are permitted if they are required by another Federal law or regulation. In these situations, the inquiries or examinations must not exceed the scope of the specific medical condition and its effect on the employee’s ability, with or without reasonable accommodation, to perform essential job functions or to work without posing a direct threat.
Yes. Employers must keep all information concerning the medical condition or history of its applicants or employees, including information about psychiatric disability, confidential under the ADA. This includes medical information that an individual voluntarily tells his/her employer. Employers must collect and maintain such information on separate forms and in separate medical files, apart from the usual personnel files. There are limited exceptions to the ADA confidentiality requirements:
If employees ask questions about a coworker who has a disability, the employer must not disclose any medical information in response. Apart from the limited exceptions listed above, the ADA confidentiality provisions prohibit such disclosure.
An employer also may not tell employees whether it is providing a reasonable accommodation for a particular individual. A statement that an individual receives a reasonable accommodation discloses that the individual probably has a disability because only individuals with disabilities are entitled to reasonable accommodation under the ADA. In response to coworker questions, however, the employer may explain that it is acting for legitimate business reasons or in compliance with federal law.
As background information for all employees, an employer may find it helpful to explain the requirements of the ADA, including the obligation to provide reasonable accommodation, in its employee handbook or in its employee orientation or training.
An employer must provide a reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability unless it can show that the accommodation would impose an undue hardship. An employee’s decision about requesting reasonable accommodation may be influenced by his/her concerns about the potential negative consequences of disclosing a psychiatric disability at work. Employees and employers alike have posed numerous questions about what constitutes a request for reasonable accommodation.
When an individual decides to request accommodation, the individual or his/her representative must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. To request accommodation, an individual may use “plain English” and need not mention the ADA or use the phrase “reasonable accommodation.”
Yes, a family member, friend, health professional, or other representative may request a reasonable accommodation on behalf of an individual with a disability. Of course, an employee may refuse to accept an accommodation that is not needed.
No. Requests for reasonable accommodation do not need to be in writing. Employees may request accommodations in conversation or may use any other mode of communication.
An individual with a disability is not required to request a reasonable accommodation at the beginning of employment. S/he may request a reasonable accommodation at any time during employment.
Yes. When the need for accommodation is not obvious, an employer may ask an employee for reasonable documentation about his/her disability and functional limitations. The employer is entitled to know that the employee has a covered disability for which s/he needs a reasonable accommodation. A variety of health professionals may provide such documentation with regard to psychiatric disabilities.
The ADA does not prevent an employer from requiring an employee to go to an appropriate health professional of the employer’s choice if the employee initially provides insufficient information to substantiate that s/he has an ADA disability and needs a reasonable accommodation. Of course, any examination must be job-related and consistent with business necessity. If an employer requires an employee to go to a health professional of the employer’s choice, the employer must pay all costs associated with the visit(s).
Reasonable accommodations for individuals with disabilities must be determined on a case-by-case basis because workplaces and jobs vary, as do people with disabilities. Accommodations for individuals with psychiatric disabilities may involve changes to workplace policies, procedures, or practices. Physical changes to the workplace or extra equipment also may be effective reasonable accommodations for some people.
In some instances, the precise nature of an effective accommodation for an individual may not be immediately apparent. Mental health professionals, including psychiatric rehabilitation counselors, may be able to make suggestions about particular accommodations and, of equal importance, help employers and employees communicate effectively about reasonable accommodation. The questions below discuss selected types of reasonable accommodation that may be effective for certain individuals with psychiatric disabilities.
Yes. Permitting the use of accrued paid leave or providing additional unpaid leave for treatment or recovery related to a disability is a reasonable accommodation, unless (or until) the employee’s absence imposes an undue hardship on the operation of the employer’s business. This includes leaves of absence, occasional leave (e.g., a few hours at a time), and part-time scheduling.
A related reasonable accommodation is to allow an individual with a disability to change his/her regularly scheduled working hours, for example, to work 10 AM to 6 PM rather than 9 AM to 5 PM, barring undue hardship. Some medications taken for psychiatric disabilities cause extreme grogginess and lack of concentration in the morning. Depending on the job, a later schedule can enable the employee to perform essential job functions.
Simple physical changes to the workplace may be effective accommodations for some individuals with psychiatric disabilities. For example, room dividers, partitions, or other soundproofing or visual barriers between workspaces may accommodate individuals who have disability-related limitations in concentration. Moving an individual away from noisy machinery or reducing other workplace noise that can be adjusted (e.g., lowering the volume or pitch of telephones) are similar reasonable accommodations. Permitting an individual to wear headphones to block out noisy distractions also may be effective.
Some individuals who have disability-related limitations in concentration may benefit from access to equipment like a tape recorder for reviewing events such as training sessions or meetings.
Yes. It is a reasonable accommodation to modify a workplace policy when necessitated by an individual’s disability-related limitations, barring undue hardship. For example, it would be a reasonable accommodation to allow an individual with a disability, who has difficulty concentrating due to the disability, to take detailed notes during client presentations even though company policy discourages employees from taking extensive notes during such sessions.
Granting an employee time off from work or an adjusted work schedule as a reasonable accommodation may involve modifying leave or attendance procedures or policies. As an example, it would be a reasonable accommodation to modify a policy requiring employees to schedule vacation time in advance if an otherwise qualified individual with a disability needed to use accrued vacation time on an unscheduled basis because of disability-related medical problems, barring undue hardship. In addition, an employer, in spite of a “no-leave” policy, may, in appropriate circumstances, be required to provide leave to an employee with a disability as a reasonable accommodation, unless the provision of leave would impose an undue hardship.
Yes. Supervisors play a central role in achieving effective reasonable accommodations for their employees. In some circumstances, supervisors may be able to adjust their methods as a reasonable accommodation by, for example, communicating assignments, instructions, or training by the medium that is most effective for a particular individual (e.g., in writing, in conversation, or by electronic mail). Supervisors also may provide or arrange additional training or modified training materials.
Adjusting the level of supervision or structure sometimes may enable an otherwise qualified individual with a disability to perform essential job functions. For example, an otherwise qualified individual with a disability who experiences limitations in concentration may request more detailed day-to-day guidance, feedback, or structure in order to perform his job.
Yes. An employer may be required to provide a temporary job coach to assist in the training of a qualified individual with a disability as a reasonable accommodation, barring undue hardship. An employer also may be required to allow a job coach paid by a public or private social service agency to accompany the employee at the job site as a reasonable accommodation.
No. Medication monitoring is not a reasonable accommodation. Employers have no obligation to monitor medication because doing so does not remove a barrier that is unique to the workplace. When people do not take medication as prescribed, it affects them on and off the job.
In general, reassignment must be considered as a reasonable accommodation when accommodation in the present job would cause undue hardship or would not be possible. Reassignment may be considered if there are circumstances under which both the employer and employee voluntarily agree that it is preferable to accommodation in the present position.
Reassignment should be made to an equivalent position that is vacant or will become vacant within a reasonable amount of time. If an equivalent position is not available, the employer must look for a vacant position at a lower level for which the employee is qualified. Reassignment is not required if a vacant position at a lower level is also unavailable.
Maintaining satisfactory conduct and performance typically is not a problem for individuals with psychiatric disabilities. Nonetheless, circumstances arise when employers need to discipline individuals with such disabilities for misconduct.
Yes, provided that the workplace conduct standard is job-related for the position in question and is consistent with business necessity. For example, nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence, or from disciplining an employee who steals or destroys property. Thus, an employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability. Other conduct standards, however, may not be job-related for the position in question and consistent with business necessity. If they are not, imposing discipline under them could violate the ADA.
An employer must make reasonable accommodation to enable an otherwise qualified individual with a disability to meet such a conduct standard in the future, barring undue hardship. Because reasonable accommodation is always prospective, however, an employer is not required to excuse past misconduct.
The employer should focus on the employee’s conduct and explain to the employee the consequences of continued misconduct in terms of uniform disciplinary procedures. It is the employee’s responsibility to decide about medication and to consider the consequences of not taking medication.
(From the Job Accommodation Network
The DSM-5 (the most recent version of the Diagnostic and Statistical Manual of Mental Disorders (DSM), which is published by the American Psychiatric Association (APA), provides diagnostic criteria for mental health impairments. According to the DSM-5 (APA, 2013), a mental health impairment is:
The National Alliance on Mental Illness (NAMI) (n.d.a) defines a mental health impairment as:
Approximately 61.5 million Americans, one in four adults, experience a mental health impairment in a given year (NAMI, 2013). One in seventeen individuals lives with a serious mental health impairment, such as schizophrenia, major depression, or bipolar disorder (National Institute of Mental Health, 2013).
The Job Accommodation Network (JAN) receives numerous accommodation questions related to individuals with mental health impairments working successfully. Although there are various definitions and lists of impairments, this document covers those that are received the most by JAN. NAMI provides useful definitions of mental health impairments and statistics on their prevalence. The following (NAMI, n.d.b) is a summary of these:
Estimates indicate approximately 2.6% of American adults, or 6.1 million people, have bipolar disorder (NAMI, 2013)
Borderline personality disorder (BPD) is “an often misunderstood, serious mental illness characterized by pervasive instability in moods, interpersonal relationships, self image, and behavior. It is a disorder of emotional dysregulation. This instability often disrupts family and work, long-term planning, and the individual’s sense of self-identity.”
Estimates indicate that 4-5% of American adults have BPD (NAMI, 2013).
Major depression is “persistent and can significantly interfere with an individual’s thoughts, behavior, mood, activity, and physical health. Among all medical illnesses, major depression is the leading cause of disability in the United States and many other developed countries.”
Estimates indicate that 14.8 million American adults have major depression (NAMI, 2013).
Obsessive compulsive disorder (OCD) "occurs when an individual experiences obsessions and compulsions for more than an hour each day, in a way that interferes with his or her life."
Estimates indicate that 2.2 million American adults have OCD (NAMI, 2013).
Panic disorder occurs when a person “experiences recurrent panic attacks, at least one of which leads to at least a month of increased anxiety or avoidant behavior. Panic disorder may also be indicated if a person experiences fewer than four panic episodes but has recurrent or constant fears of having another panic attack.”
Estimates indicate that 6 million American adults have panic disorder (NAMI, 2013).
Post traumatic stress disorder (PTSD) is “an anxiety disorder that can occur after someone experiences a traumatic event that caused intense fear, helplessness, or horror. While it is common to experience a brief state of anxiety or depression after such occurrences, people with PTSD continually re-experience the traumatic event; avoid individual’s, thoughts, or situations associated with the event; and have symptoms of excessive emotions. People with this disorder have these symptoms for longer than one month and cannot function as well as they did before the traumatic event. PTSD symptoms usually appear within three months of the traumatic experience; however, they sometimes occur months or even years later.”
Estimates indicate that 7.7 million American adults have PTSD; this includes 15-30% of veterans (NAMI, 2013).
Schizophrenia “often interferes with a person’s ability to think clearly; to distinguish reality from fantasy; and to manage emotions, make decisions, and relate to others.”
Estimates indicate that 2.4 million American adults have schizophrenia (NAMI, 2013).
Seasonal affective disorder (SAD) is “characterized by recurrent episodes of depression – usually in late fall and winter – alternating with periods of normal or high mood the rest of the year.”
The ADA does not contain a list of medical conditions that constitute disabilities. Instead, the ADA has a general definition of disability that each person must meet (EEOC Regulations …, 2011). Therefore, some people with mental health impairments will have a disability under the ADA and some will not.
A person has a disability if he/she has a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or is regarded as having an impairment (EEOC Regulations … , 2011).
JAN provides resources on mental health impairments and the ADA at http://AskJAN.org/media/psyc.htm. This includes accommodation ideas, information on the ADA and its amendments, and guidance from the EEOC. Two EEOC guidances that may be helpful working through the accommodation process are: The ADA and Psychiatric Disabilities at http://www.eeoc.gov/policy/docs/psych.html and The ADA: Applying Performance and Conduct Standards to Employees with Disabilities at http://www.eeoc.gov/facts/performance-conduct.html.
(Note: People with mental health impairments may develop some of the limitations discussed below, but seldom develop all of them. Also, the degree of limitation will vary among individuals. Be aware that not all people with mental health impairments will need accommodations to perform their jobs and many others may only need a few accommodations. The following is only a sample of the possibilities available. Numerous other accommodation solutions may exist.)
Two common issues that JAN receives inquiries on are: (1) what accommodations will work for individuals with mental health impairments when workplaces are implementing substantial changes, and (2) what accommodations will help supervisors work effectively with individuals with mental health impairments. Many accommodation ideas are born from effective management techniques. When organizations are implementing workplace changes, it is important that key personnel recognize that a change in the environment or in supervisors may be difficult. Maintaining open channels of communication to ensure any transitions are smooth, and providing short weekly or monthly meetings with employees to discuss workplace issues can be helpful.
Supervisors can also implement management techniques that support an inclusive workplace culture while simultaneously providing accommodations. Techniques include the following:
Equal Employment Opportunity Commission
P.O. Box 7033
Lawrence, Kansas 66044
(800) 669-4000 (Voice), (800) 669-6820 (TDD)
For more specific information about ADA requirements affecting public accommodations and State and local government services contact:
Department of Justice
Office on the Americans with Disabilities Act
Civil Rights Division
P.O. Box 66118
Washington, DC 20035-6118
(202) 514-0301 (Voice)
(202) 514-0381 (TDD)
(202) 514-0383 (TDD)
For more specific information about requirements for accessible design in new construction and alterations contact:
Architectural and Transportation Barriers Compliance Board
1111 18th Street, NW
Washington, DC 20036
For more specific information about ADA requirements affecting transportation contact:
Department of Transportation
400 Seventh Street, SW
Washington, DC 20590
(202) 755-7687 (TDD)
For more specific information about ADA requirements for telecommunications contact:
Federal Communications Commission
1919 M Street, NW
Washington, DC 20554
(202) 632-1836 (TDD)
For more specific information about federal disability-related tax credits and deductions for business contact:
Internal Revenue Service
Department of the Treasury
1111 Constitution Avenue, NW
Washington, DC 20044
American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders (5th ed.). Washington, DC:
Corbière, M., Lanctôt, N., Lecomte, T., et al., (2010). “A pan-canadian evaluation of supported employment programs dedicated to people with severe mental disorders.” Community Mental Health Journal, 46(1), 44–55.
EEOC Regulations To Implement the Equal Employment Provisions of the Americans With Disabilities Act, as Amended, 29
C.F.R. § 1630 (2011).
Finkler, E., (retrieved 2015, April). “Open sourcing mental illness: changing how we talk about mental health in the tech community.” Retrieved from http://funkatron.com/osmi/
Job Accommodation Network. (2015). Accommodation and compliance series: Employees with mental health impairments.
Retrieved from https://askjan.org/media/Psychiatric.html
Khalema, N.E., & Shankar, J. (2014). “Perspectives on employment integration, mental illness and disability, and workplace health.” Advances in Public Health.
Retrieved from http://www.hindawi.com/journals/aph/2014/258614/
National Alliance on Mental Illness. (2013). Mental illness: Facts and numbers.
Retrieved from http://www.nami.org
National Alliance on Mental Illness. (n.d.a). What is mental illness: Mental illness facts.
Retrieved from http://www.nami.org
National Alliance on Mental Illness. (n.d.b). Mental illness: By illness.
Retrieved from http://www.nami.org
National Institute of Mental Health. (2008). NIMH: The numbers count— Mental disorders in America.
Retrieved from http://www.nimh.nih.gov
National Mental Health Association, (retrieved 2015, April). “Supported employment for persons with psychiatric disabilities: a review of effective services.”
Retrieved from http://starcityblog.typepad.com/files/nmhasupported_employment.pdf
United States Equal Employment Opportunity Commission. (2009). EEOC Enforcement guidance on the americans with disabilities act and psychiatric disabilities.
Retrieved from http://www.eeoc.gov/policy/docs/psych.html
United States Equal Employment Opportunity Commission. (n.d.a.). The ADA: Your responsibilities as an employer.
Retrieved from http://www.eeoc.gov/eeoc/publications/ada17.cfm