How the ADA Applies to People with Psychiatric Disabilities
On March 28, 1997, the Equal Employment Opportunity Commission (EEOC) released a policy guidance concerning application of the Americans with Disabilities Act to individuals with psychiatric disabilities. The comprehensive document answers some of the most common questions about psychiatric disabilities and the ADA.
The guidance should be helpful to consumers, advocates and employers alike. It discusses how to determine whether a condition is covered under ADA, disclosure of a disability, requesting reasonable accommodations, examples of reasonable accommodations, when an employer can discipline a worker for misconduct resulting from a disability, direct threat and professional licensing.
A guidance is an addition to the EEOC compliance manual and is used by the agency’s investigators in determining whether a complainant’s ADA rights have been violated. Although EEOC guidances are not regulations, they can inform courts about the official position of the agency responsible for ADA enforcement in the employment area.
Advocates should be aware, however, that recent Supreme Court decisions have overruled parts of the guidelines. See What Advocates Can Do About Supreme Court’s Recent Decisions.
Several of the EEOC positions in the new guidance are especially important to consumers and advocates:
* The guidance expands the list of major life activities to include those relevant to psychiatric disability. An employee wishing to establish that he or she has a covered disability must show substantial limitation of a major life activity. The guidance includes such activities as “learning, thinking, concentrating, interacting with others, caring for oneself, speaking, performing manual tasks, or working. Sleeping is also a major life activity ….” This expansion should enable people with psychiatric disabilities to get past the first hurdle under the ADA: whether the employee has a covered disability.
* The agency affirms that “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.” The guidance mentions bipolar disorder, major depression and schizophrenia as examples of disabilities that may be episodic over the course of months or years. Accordingly, even if a disability is not currently active, an employee who needs an accommodation to continue controlling symptoms can be covered by the ADA.
* The guidance again notes that an employer cannot ask a job applicant whether he or she has a disability or needs a reasonable accommodation. This is a particularly useful protection for people with disabilities that are not visible.
* The Commission clarifies that an employer requesting information from an employee seeking an accommodation may only ask for information that is necessary to verify the existence of a disability and the need for accommodation. This provision means an employee or applicant may refuse broad employer requests, such as for all of a consumer’s therapy notes. However, employees should be aware that the guidance allows the employer to insist that the employee see a professional of the employer’s choice if the initial information given the employer is insufficient to prove that the employee has a disability and needs an accommodation.
* The EEOC also takes the position that an employee can use plain English to request an accommodation and need not use the specific terms “reasonable accommodation” and “ADA.” This should make it easier for employees who are not familiar with the legal terms.
* The guidance gives several examples of potential accommodations, including modifications to work schedules or policies, physical changes to the workplace, adjusting supervisory methods, providing a job coach, and reassignment to a different position. The guidance also makes clear that medication monitoring is not a reasonable accommodation, so employees cannot be forced to take medication under the employer’s directive.
* Importantly, the guidance provides that an employer can only discipline an employee with a disability for misconduct related to the disability if the workplace standard is job-related to the employee’s position and consistent with business necessity. If the misconduct has no relation to the person’s ability to do the job in question, the employee cannot be disciplined.
The full text of the guidance is available on the EEOC’s web-site at www.eeoc.gov or from the Commission’s publication distribution center (1-800-669-3362).
Also see Handling Your Psychiatric Disability in Work or School, an interactive website.
Updated August 2, 2001.
Judge David L. Bazelon Center for Mental Health Law
1101 15th Street, NW, Suite 1212
Washington, DC 20005