EEOC's Guidance on Psychiatric Disabilities and the ADA

  • Stress alone may, under certain circumstances, be a "mental impairment"

  • Employers may require that an employee be evaluated, at the employer's expense, by a health care professional chosen by the employer if such an examination is "job-related and consistent with business necessity"

  • Employers may require an applicant or employee to provide "reasonable documentation" describing the applicant or employee's psychiatric disability and resulting functional limitations

  • Employers may be required to excuse violations of workplace conduct rules which are not "job-related and consistent with business necessity" as to a particular position if committed by an individual with a psychiatric disability

  • Employers must make individualized assessments regarding individuals with disabilities, their abilities to perform certain jobs, and the risk of their posing a direct threat

  • Employers must maintain documentation of requests for reasonable accommodation for either one year from the date of the resulting personnel action or for one year from the date the record is made, whichever is later

On March 26, 1997, the U.S. Equal Employment Opportunity Commission made another attempt to explain the coverage and practical application of the Americans with Disabilities Act ("ADA") by issuing a new policy guidance entitled, "The Americans with Disabilities Act and Psychiatric Disabilities," reprinted in 8 Daily Lab. Rep. 462 (Apr. 2, 1997). As its title implies, the Guidance explores in great detail the world of accommodating employees with psychiatric disabilities. This guidance is no doubt a response to the significant number of ADA charges based upon emotional or psychiatric impairments which have been filed with the EEOC in the past four years -- about 12.7 percent of all ADA charges. Surprisingly, however, the Guidance provides relatively little new information regarding ADA compliance for individuals with psychiatric disabilities.

The often non-visible or non-obvious nature of psychiatric disabilities makes compliance with the ADA challenging when individuals with psychiatric disabilities are involved. For example, identifying an individual with a psychiatric disability and fashioning reasonable accommodations for that individual may require more attention and innovation than doing the same for an individual in a wheelchair. However, and fortunately for employers, these efforts generally can be accomplished utilizing the same ADA principles and guidelines that are applied to situations involving individuals with more obvious physical disabilities. Consequently, the greatest value of the guidance is that it couches these familiar principles in terms of psychiatric disabilities.

I. What Constitutes An ADA-Protected Psychiatric Disability?

Psychiatric disabilities comprise one subset of mental disabilities under the ADA. The statute defines a "mental disability" as (1) a mental impairment (2) that substantially limits (3) one or more major life activities. The new EEOC Guidance reviews and elaborates upon all three prongs of this definition. It is important to remember that all three prongs, without regard for mitigating measures such as medication, must be satisfied in order to trigger ADA coverage.

A. Step One: What Is a Mental Impairment?

According to the ADA Regulations, a "mental impairment" is "[a]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities." 29 C.F.R. § 1630.2(h)(2) (emphases added). The Guidance purports to focus primarily upon one subset of mental or psychological disorders--emotional or mental illnesses. 8 Daily Lab. Rep. at 462 n.6, 465 n.29. Therefore, based upon the Guidance's stated focus and the title of the Guidance, it must be assumed that "psychiatric disabilities" are mental disabilities resulting from mental impairments caused by emotional or mental illnesses.

The Guidance lists the following as examples of "emotional or mental illnesses": major depression, bipolar disorder, anxiety disorders (including panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia, and personality disorders. 8 Daily Lab. Rep. at 462. The Guidance names the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) as "relevant for identifying these disorders." However, employers should be aware that "not all conditions listed [in the DSM-IV] are disabilities, or even impairments," for ADA purposes. For example, the DSM-IV lists "conditions" that are not "mental disorders" and therefore not "impairments" under the ADA. In addition, Congress has excluded individuals currently using illegal drugs from the definition of "individual with a disability." But see infra part I.A.1.

1. Illegal Drug Use

An important aside is that employers may not use their drug policies to justify adverse employment decisions against individuals with psychiatric disabilities unless the decisions were made without regard to the employee's psychiatric disability. The ADA and the ADA Regulations allow an employer to prohibit all employees from using or engaging in the use of illegal drugs at the workplace, and allow an employer to require that all employees conform with the requirements of the Drug-Free Workplace Act of 1988, 41 U.S.C. § 701 et seq. 42 U.S.C. § 12114(c); 29 C.F.R. 1630.16(b). The bottom line is that employers must apply their drug policies consistently and uniformly to all employees, regardless of disability status, in order to guard against charges of disability discrimination in this context.

Unfortunately, the Guidance seemingly blurs the consensus to date that discipline, including termination, of an employee engaged in the illegal use of drugs could not subject an employer to an ADA claim. The second paragraph of a footnote in the Guidance reads:

Individuals with psychiatric disabilities may, either as part of their condition or separate from their condition, engage in the illegal use of drugs. In such cases, EEOC investigators may need to make a factual determination about whether an employer treated an individual adversely because of his/her psychiatric disability or because of his/her illegal use of drugs.

8 Daily Lab. Rep. at 463 n.9 (emphasis added). This language implies that illegal drug use may at times be part of an individual's psychiatric disability, which in turn suggests that such behavior could require an employer's reasonable accommodation. If this is, in fact, the EEOC's view, this interpretation presents an interesting challenge for EEOC investigators and a possible conflict with the statute, which states as follows:

[T]he term "qualified individual with a disability" shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.

42 U.S.C. § 12114; see also 29 C.F.R. § 1630.3(a) ("The terms disability and qualified individual with a disability do not include individuals currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.").

2. Personality Traits and Behaviors Usually Are Not Mental Impairments

Regarding personality traits and behaviors, the Guidance is consistent with the ADA Regulations, which state that "personality traits such as poor judgment or a quick temper" are not mental impairments under the Act unless they are symptoms of a mental or psychological disorder. 29 C.F.R. pt. 1630 App. The Guidance gives the examples of irritability, chronic lateness, and poor judgment as traits and behaviors which are not, in and of themselves, mental impairments, but which may be linked to mental impairments.

Stress is addressed separately, and the Guidance states explicitly that stress is not "automatically" a mental impairment. However, the differentiation of stress from the other listed traits implies that stress, by itself, may at times be a mental impairment for ADA purposes in the eyes of the EEOC. Unfortunately, the Guidance gives no indication as to when such a conclusion should be reached.

B.Step Two: What Major Life Activities Are Affected By Psychiatric Disabilities?

A mental impairment must substantially limit a major life activity in order to be a "disability" under the ADA. Therefore, identifying "major life activities" is an integral step in the ADA analysis. Examples of "major life activities" provided by the Guidance include learning, thinking, concentrating, interacting with others, caring for oneself, speaking, performing manual tasks, working, and sleeping. 8 Daily Lab. Rep. at 463. Most of these examples already appear in the ADA Regulations or in previous EEOC guidances. 29 C.F.R. § 1630.2(i) (working); 29 C.F.R. § pt. 1630 App. § 1630.2(i) (caring for oneself, performing manual tasks, speaking, learning, working); "EEOC [Guidance]: Definition of Term 'Disability,'" reprinted in Fair Empl. Prac. Man. (BNA) 405:7251, 7261 (Mar. 14, 1995) [hereinafter "Disability Guidance"] ("mental and emotional processes such as thinking, concentrating, and interacting with others"). Although footnotes to the Guidance explain that "[i]nteracting with others . . . is not substantially limited just because in individual is irritable or has some trouble getting along with a supervisor or coworker," and "[s]leeping is not substantially limited just because an individual has some trouble getting to sleep or occasionally sleeps fitfully," it is obvious that the EEOC's naming these as examples of "major life activities" opens the door to many problems in distinguishing between claims which are legally meritous and those which are not.

C. Step Three: When Do Psychiatric Disabilities Substantially Limit Major Life Activities?

Once it is determined that a mental impairment has affected one or more major life activities, the next step is to assess whether the impairment substantially limits the major life activity or activities. The Guidance's discussion of "substantial limitation" is consistent with portions of the ADA Regulations already in existence. See 29 C.F.R. § 1630.2(j). The Guidance and the ADA Regulations explain that two components of a "substantial limitation of a major live activity" must be evaluated: (1) severity of the limitation (without regard to mitigating measures, such as medication, but with regard to the negative side effects of any medication), and (2) duration of the limitation (more than a few months). 29 C.F.R. § 1630.2(j); 8 Daily Lab. Rep. at 463-64, 464 n.24. Such evaluation must focus on how the impairment affects a particular individual rather than generalizations about the condition, and should compare the individual to an average person in the general population. 29 C.F.R. § 1630.2(j)(ii); 8 Daily Lab. Rep. at 463. Employers should expect EEOC investigators to examine the following: (1) how an individual functions at home, at work, and in other settings; and (2) evidence showing that the individual's functional limitations are linked to his or her impairment. Surprisingly, expert testimony is not required: "[c]redible testimony from the individual with a disability and his/her family members, friends, or coworkers may suffice." 8 Daily Lab. Rep. at 463.

The Guidance explains that "chronic, episodic disorders" can be substantially limiting "when [they are] active or have a high likelihood of recurrence in substantially limiting forms." 8 Daily Lab. Rep. at 464. For example, "[f]or 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." Id.

1. Substantial Limitation of Specific Major Life Activities

The Guidance elaborates on how psychiatric impairments may substantially limit the following four major life activities: the ability to interact with others, the ability to concentrate, the ability to sleep, and the ability to care for oneself. 8 Daily Lab. Rep. at 464-65. In all four cases, the question is whether the impaired individual is "significantly restricted as compared to the average person in the general population." 8 Daily Lab. Rep. at 464-65 (emphasis added). Again, this is consistent with the ADA Regulations and EEOC guidances already in existence. 29 C.F.R. § 1630.2(j)(1)(ii); Disability Guidance, Fair Empl. Prac. Man. (BNA) at 405:7262. Interestingly, the Guidance gives examples of individuals who are slightly limited in their ability to concentrate or sleep due to a mental impairment, such as depression or post-traumatic stress order, but who are not significantly restricted in these major life activities when compared to the average person in the general population, and thus who are not disabled under the ADA. 8 Daily Lab. Rep. at 465. The Guidance also explains that an individual who, on a long-term or potentially long-term basis, sleeps so much due to a psychiatric impairment that he cannot effectively care for himself (getting up in the morning, bathing, dressing, and preparing or obtaining food) is substantially limited in the major life activity of caring for himself.

II. How An Employer May Learn Of An Applicant or Employee's Psychiatric Disability

A. Pre-Offer

As with any other disability, an employer may not ask any questions likely to elicit information about a psychiatric disability before the employer has made an offer of employment. This includes asking an applicant whether he or she has a disability or whether he or she will need reasonable accommodation for the job. Therefore, it is unlikely that an employer will be aware of an applicant's psychiatric disability at the application stage unless the applicant voluntarily discloses such information.

There are, however, exceptions which allow an employer to inquire about an applicant's disability at the application stage. One exception is when the employer reasonably believes, before making the job offer, that the applicant will need accommodation to perform the functions of the job. This could happen in two circumstances: (1) when the applicant has a visible disability, and (2) when the applicant with a non-visible disability voluntarily discloses the disability or voluntarily tells the employer that he or she will need reasonable accommodation to perform the job.

In the unlikely event of the second situation, an employer may ask the applicant whether he or she needs reasonable accommodation and, if so, what type of reasonable accommodation would be need to perform the job. For example, if an applicant asks to be allowed to take a required typing test in a quiet area due to a "medical condition," the employer may require that the employee provide documentation to verify the existence of the disability and which describes the functional limitations and the need for accommodation. 8 Daily Lab. Rep. at 466. The applicant and the applicant's family and friends may also provide information about the applicant's functional limitations. 8 Daily Lab. Rep. at 466 n.34.

B. Post-Offer

The more likely scenario, however, is that the employer will offer a job to an applicant with a psychiatric disability of which the employer is unaware. Post-offer, the employer may learn of the employee's psychiatric disability through either the employee's voluntary disclosure of it, the employee's voluntary request for reasonable accommodation, the employee's responses to a post-offer medical questionnaire, or the results of a required post-offer medical examination. Post-offer medical questionnaires and examinations need not be job-related, but must be required of all new employees in the same job category. An employer may use the results of such questionnaires and medical examinations to justify revoking the disabled employee's job offer, but only if the exclusionary criteria are "job-related and consistent with business necessity, and cannot be met with reasonable accommodation." 8 Daily Lab. Rep. at 466 n.37.

After an employee has been working, an employer may not inquire about a psychiatric disability or require a medical examination unless to do so is "job-related and consistent with business necessity." This could happen in at least four situations: (1) an employee with a psychiatric disability requests reasonable accommodation, (2) an employer believes, based on objective evidence, that an employee's ability to perform essential job functions will be impaired by a medical condition or that an employee will pose a direct threat due to a medical condition, (3) such inquiries are required by another federal law or regulation, or (4) the employee holds a public safety position and periodic medial examinations, narrowly tailored to address specific job-related concerns, are required by business necessity. The Guidance emphasizes that 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." 8 Daily Lab. Rep. at 466 (emphases removed). Therefore, employers must take care to inquire only as to specific behaviors or activities, and necessary and proper medical examinations similarly must be very limited.

C. What Can the Employer Tell Other Employees?

Reasonably accommodating an employee with a psychiatric disability may at times become noticeable to other employees, despite an employer's best efforts to the contrary. Employers must remember that they may not tell other employees how, when, or whether they are providing particular employees with reasonable accommodations. An employer may only say that it is complying with federal law or acting for legitimate business reasons.

III. Reasonably Accommodating An Employee With A Psychiatric Disability

Employers should be aware that an employee or an employee's "representative," at any time during employment, may request reasonable accommodation for the employee by using "plain English" and need not mention the ADA or the term "reasonable accommodation." As with any reasonable accommodation request under the ADA, in a psychiatric disability situation the only requirements for such a request are that the employer be notified that the employee (1) needs an adjustment or change at work (2) for a reason related to a medical condition. 8 Daily Lab. Rep. at 468. Note that although the request need not be in writing, the employer must keep records of such requests for one year from either the date such record is made or the date of the resulting personnel action, whichever is later. 8 Daily Lab. Rep. at 468 n. 50 (citing 29 C.F.R. § 1602.14).

In the psychiatric disability arena, something as simple as a request for time off because an employee is "depressed and stressed" is sufficient, according to the Guidelines, to put an employer on notice that the employee needs reasonable accommodation (a change at work due to a medical condition). However, if the employee's need for such accommodation is not obvious under the circumstances, the employer may ask the employee to provide "reasonable documentation" which explains the employee's disability and functional limitations. Note that an employer may request no more than "reasonable documentation," which is the minimum necessary to determine whether the employee has a disability and resulting functional limitations. For example, "the employer may ask the employee to sign a limited release allowing the employer to submit a list of specific questions to the employee's health care professional about his condition and need for reasonable accommodation." 8 Daily Lab. Rep. at 469. In the alternative, the employer may require that the employee go to "an appropriate health professional of the employer's choice," at the employer's expense, if such an examination is job-related and consistent with business necessity. Another alternative is to have the employer's chosen health professional consult with the employee's health professional, with the employee's consent. 8 Daily Lab. Rep. at 469 n.55.

The Guidance emphasizes that particular reasonable accommodations for individuals with psychiatric disabilities must be determined on a case-by-case basis, considering the specific workplace, job, and people involved. Suggested resources for the employer contemplating reasonable accommodation include mental health professionals and the Job Accommodation Network. Of course, an employer is not required to lower standards or remove essential functions of the job as part of reasonable accommodation. 8 Daily Lab. Rep. at 470 n. 62.

Examples of reasonable accommodations for individuals with psychiatric disabilities include (1) changes to workplace policies, procedures, or practices, (2) physical changes to the workplace or obtaining extra equipment; (3) time off or modified work schedules; (4) adjusting supervisory methods; (5) providing a job coach; and (6) reassignment to a different position. These are no different from the types of reasonable accommodations previously suggested and explored for individuals with non-psychiatric disabilities. Of course, as with any ADA reasonable accommodation, such accommodations are not required if they cause the employer "undue hardship." Note, however, that reassignment to an equivalent or, if unavailable, lower-level position must be considered if reasonable accommodation is not possible. Alternatively, the employer and employee may agree that reassignment is preferable to accommodation in the employee's current position. 8 Daily Lab. Rep. at 470-71.

IV. Workplace Conduct Rules and Psychiatric Disabilities -- Special Considerations

The Guidance's most interesting and significant discussions appear in its sections addressing workplace conduct rules. Employers may, in certain circumstances, be required to excuse violations of certain workplace conduct rules by individuals with psychiatric disabilities.

The Guidance explains that employers may discipline individuals with psychiatric disabilities when they violate workplace conduct standards, even if the misconduct resulted from the individual's psychiatric disability, but only if the conduct standard "is job-related for the position in question and is consistent with business necessity." 8 Daily Lab. Rep. at 471. According to the Guidance, workplace rules prohibiting violence, threats of violence, theft, and destruction of property are always appropriate when applied equally to all employees. Any other conduct standards, such as dress codes and coworker courtesy rules, must be evaluated for job-relatedness and consistency with business necessity for the particular position in question.

Workplace conduct standards which are found to be job-related and consistent with business necessity for the particular job in question are appropriate if applied to all employees. However, reasonable accommodation to enable an employee with a psychiatric disability to meet such standards in the future is required. For example, a librarian who shouts at patrons and coworkers, thus violating workplace conduct rules because of his disability, may be properly disciplined until he reveals his disability to his employer and requests reasonable accommodation. After such disclosure and request, the employer must reasonably accommodate the employee in the future, but need not revoke any discipline imposed thus far.

If the workplace conduct standards in question are not job-related and consistent with business necessity for the particular position in question, an employee who violates them due to a psychiatric disability must not be disciplined for such violations. For example, a warehouse worker with no customer contact who violates the company dress code due to a psychiatric disability should not be disciplined if the employee's noncompliance was due to his psychiatric disability, because the dress code rule is not job-related and consistent with business necessity for an isolated warehouse worker. Apparently, this is true regardless of whether the employee reveals his or her disability before or after disciplinary action.

V. Determining Whether an Individual With a Psychiatric Disability Presents a Direct Threat

Employers may be concerned that certain employees with psychiatric disabilities may pose a direct threat to the safety of themselves or others in the workplace. However, an employer can exclude an individual from employment for such reasons only if the employer can identify a specific behavior on the part of the employee which would cause a "direct threat" -- a high "risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." Daily Lab. Rep. at 472. The employer should consider (1) duration of the risk, (2) nature and severity of the potential harm, (3) likelihood that the potential harm will occur, (4) imminence of the potential harm, and (5) an individualized assessment of the individual's present ability to perform the functions of the job, considering a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. 8 Daily Lab. Rep. at 472, 472 n.75.

For example, if an employer is concerned about an employee's ability to safely operate dangerous equipment due to the side effects of medication taken by the employee for a psychiatric condition, the employer must determine the nature and severity of the side effects experienced by that individual and whether the individual has had problems safely operating such or similar machinery in the while taking the same medication. If after this individualized inquiry the employer finds that a direct threat (significant risk of substantial harm) does exist, then the employer must determine whether there is a reasonable accommodation that will reduce or eliminate the risk.

Another area of concern for employers is an individual with a history of violence or threats of violence. Again, the employer must make an individualized assessment and must identify the specific behavior that would cause the direct threat. In assessing the likelihood and imminence of future violence, the employer may properly consider the employee's violent threats and incidents with previous employers, whether prior treatment affected the employee's behavior, and any subsequent treatment.

An individual who has attempted suicide may also cause a new employer concern. However, the employer must again make an individualized assessment of the individual's ability to safely perform the job functions. Reports from the individual's treating health care providers also should prove helpful in making this assessment.