In March 2012 a federal district court held an employer liable for disability discrimination after it terminated an employee shortly after he had requested a leave of absence to adjust to new medication for bipolar disorder. The court awarded $315,000 to the employee. This case serves as a reminder that the Americans with Disabilities Act (ADA) applies to both mental and physical disabilities.
Recent statistics indicate that one in four adults will suffer from a diagnosable mental illness in a given year. Although not all individuals with a mental illness will be considered to have a disability under the ADA, many of these individuals will be covered by the ADA.
Under the ADA, an individual has a disability if he/she has a physical or mental impairment that substantially limits one or more of the major life activities of such individual. A “mental impairment” is defined as “[a]ny mental or psychological disorder, such as . . . emotional or mental illness.” Examples of “emotional or mental illness” include major depression, bipolar disorder, anxiety disorders (which include panic disorders, obsessive compulsive disorders and post-traumatic stress disorders), schizophrenia and personality disorders.
Similar to employees with physical disabilities, employees with mental impairments are entitled to a reasonable accommodation, which may include changes to workplace policies, procedures or practices; leaves of absence; or physical changes to the workplace. In addition, a supervisor may be required to adjust the way he/she interacts with an employee as a reasonable accommodation. Determining whether an accommodation is reasonable is fact specific. Therefore, it is critical that an employer engage in an interactive process to determine if a reasonable accommodation exists.
As part of an interactive process, an employer may request medical documentation regarding the employee’s mental health condition and any functional limitations. The request should be limited to documents that enable an employer to determine if the individual has a covered disability. For example, an employer that receives a doctor’s slip that provides that the employee needs time off for stress could request additional medical documentation regarding the employee’s medical condition and clarification on the leave requested.
An employer does not have to necessarily grant the accommodation being requested by the employee. During the interactive process, an employer can determine whether other reasonable accommodations exist. For example, an employee with a disability who has difficulty concentrating may request his/her own office. If only certain job functions are impacted by the employee’s difficulty concentrating, the employer could allow the employee to use a conference room when these job functions are being performed.
Employers also do not necessarily have to overlook misconduct of a workplace rule by an individual with a mental illness provided that the workplace conduct standard is job-related and consistent with business necessity. Therefore, before determining if discipline is appropriate, an employer needs to evaluate if the conduct standard is job-related for the position and consistent with business necessity. Courts have upheld the discharge of employees who allege that their hostile and threatening conduct is the result of a mental illness. On the other hand, an employer may not be able to discipline an employee who alleges his disheveled appearance is the result of a mental illness for violating the employer’s appearance policy if the employee has no customer contact.
To assist employers on this issue, the EEOC has issued a 30-day enforcement guidance on psychiatric disabilities. This guidance can be found at: http://www.eeoc.gov/policy/docs/psych.html