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In a "guidance" issued on April 29, the federal agency reinforced and clarified the ADA's prohibition against workplace discrimination directed at current or prospective employees with an existing mental illness or a history of such disorders.
The EEOC's interpretation of the mental illness provisions of the ADA points out that while the law--which was passed in 1990 and went into effect in 1992--does not compel employers to lower standards to accommodate workers with mental illnesses, it does require them to make certain "reasonable accommodations" that include, for example, granting extra time off from work or adjusting schedules and assignments to allow for lateness, impaired judgment, or medication regimens attributable directly to the disorder. An employer whose workers routinely rotate shifts would, for example, be expected to allow someone with bipolar disorder whose lithium schedule prohibits juggling of shifts to work a steady schedule.
Also in the "reasonable accommodations" category, the EEOC guidelines state, is making changes in the physical work environment to eliminate obstacles that could prevent a disabled person from otherwise doing a particular job.
Most of the ADA rulings in which the EEOC has been asked to intervene have involved physical disabilities, but in the last four years more than 9,200 ADA-related complaints fielded by the agency, or almost 13 percent, have involved instances of alleged bias linked to psychiatric disorders.
With only back injuries accounting for more disability discrimination claims, EEOC officials thought it was time to clarify the extent of employer responsibility to those whose disabilities may be mental rather than physical, especially in light of the "myths, fears, and stereotypes" that still stigmatize that class of illnesses, said the EEOC's Peggy Mastroianni.
"We wanted to show that the law applies to people with psychiatric disabilities in the same way it applies to people with physical disabilities," emphasized Mastroianni, who is the commission's associate legal counsel.
By issuing this guidance, the EEOC is not condemning employers for deliberately ignoring ADA regulations governing workers with mental disabilities, she indicated. The commission is instead responding to a host of inquiries from employers confused about what activities are required or proscribed under the ADA when psychiatric disorders are at issue; adaptations in response to physically disabled workers are clearer to most companies.
Though lawmakers crafting the ADA took great pains to ensure that the ability of companies to conduct business competitively and efficiently was not compromised in guaranteeing protections for disabled workers, employers may not always be pleased or relieved to hear what the EEOC thinks the ADA expects of them.
While the ADA insists that mental impairments must cause "substantial limitations" in "major life activities" to reach the level of disability covered by the law, included in these activities are "learning, thinking, concentrating, interacting with others, caring for oneself, speaking, or working," terms many employers will have a hard time characterizing with typical work behaviors.
The EEOC guidelines stress that the mere presence of a mental disorder does not qualify a worker for ADA protections, clarifying this with examples in which an impairment in each of the above activities "substantially limits" an individual's abilities and thus disables him or her.
Long-term sleep disruptions attributable to serious mental disorders also meet the criteria for major life activity restrictions. The commission gives the example of a worker with PTSD "who sleeps only a negligible amount without medication for many months." This person is "significantly restricted" compared with the general population and meets ADA standards.
Regarding the ability to interact with others, for instance, the EEOC emphasizes that a worker meets the ADA criteria 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." An individual would meet the criterion, 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." Persons with schizophrenia are often disabled on this dimension, EEOC explains, until they find an effective medication.
It will certainly not be a simple task for employers, especially ones without ready access to mental health experts, to determine which employee behaviors result from ADA-qualifying mental impairments--and must thus be accommodated--and which are simply manifestations of unpleasant personality traits or stresses of daily living. Stress, for example, "may be shown to be related to a mental or physical impairment," explains the EEOC, in which case ADA rules could apply. "Similarly, traits like irritability, chronic lateness, and poor judgment are not, in themselves, mental impairments, although they may be linked to mental impairments."
Setting up a medication monitoring system to ensure that disabled workers take prescribed medications that allow them to function better at work is not a "reasonable accommodation," the commission notes, since "doing so does not remove a barrier that is unique to the workplace."
The EEOC warns employers not to rely on "generalizations" about a particular disorder in deciding if the ADA applies, but to assess how and if that disorder may be "substantially limiting" an individual worker. Companies are also expected to make accommodations for "chronic, episodic disorders. . .if they are substantially limiting when active or have a high likelihood of recurrence" and restrict critical activities when they do recur.
Among the potentially troublesome areas for which the EEOC offers guidance is how supervisors should respond to questions from a disabled employee's coworkers who ask why an individual is receiving special treatment, emphasizing that protecting the disabled worker's confidentiality must be paramount. The commission's recommended responses to such inquiries include that the company is "acting for legitimate business reasons" or taking steps to be "in compliance with federal law." Even information a disabled worker voluntarily provides to an employer must be guarded with strict confidentiality, the guidelines stress.
The guidelines point out both legitimate and off-limits employer questions during a job applicant's interview as well as limits to situations in which employers can ask a worker about adaptations the employer suspects may be needed to accommodate the worker's disability. The commission also provides help in determining when a prospective employer can even ask about the existence of a disability within the boundaries of the ADA.
When an employee does ask his or her employer to make a disability-related accommodation and the employer does not think the need is clear, the company can pay for the worker to get a disability evaluation from a health care professional of the employer's choosing.
"Any examination must be job related and consistent with business necessity," the EEOC emphasizes.
To employers who feel that the requirements are so onerous they could interfere with their ability to do business or impose a severe financial burden, the government guidance points out that they are exempted from making accommodations for a worker's disabilities--physical and mental--when enacting them would cause the company "undue hardship."
(Psychiatric News, June 6, 1997)