Mental Health and the ADA-



Mental Health and the ADA-

Q & A, FAQs

Does the person have to disclose to be covered?

Yep.

Exceptions to provision of accommodations?

Yes, 2.

First, an employer is not required to provide an accommodation if it will impose an "undue hardship" on the operation of its business such as accommodations that are excessively costly, extensive, substantial, or disruptive, or would fundamentally alter the nature or operation of the business.

Second, an employer may refuse to employ or provide accommodations to an individual who poses a "direct threat" to the health or safety of him/herself or other employees in the workplace. The determination that an individual poses a direct threat to self or others cannot be made simply based on stereotypical generalizations about mental illness, but may be based only on objective evidence from a treatment provider or another credible source that the individual’s present condition makes him or her a direct threat to self or others.

State governments in particular?

A state or local government must eliminate any eligibility criteria for participation in programs, activities, and services that screen out or tend to screen out or discriminate against persons with disabilities, unless it can establish that these requirements are necessary for the provision of the service, program, or activities.

For example, a state may not refuse to grant a driver's license to someone merely because of their psychiatric diagnosis, unless the illness or medication taken for the illness interfere with the ability to drive. The ADA also requires that all new buildings constructed by a state or local government be accessible.

Disclosure language:

The Equal Employment Opportunity Commission (EEOC) has published new Enforcement Guidance on the ADA and People with Mental Illness. In it, the

EEOC states that someone who has a mental illness can tell their employer about the illness using “ English”. This means that the employee is not required to use certain terms such as clinical diagnoses, mental illness or psychiatric disability to disclose mental illness and request accommodations. Some examples of the terms and phrases that an employer may hear are:

* I have a medical condition that requires more frequent breaks to do my work.

* I need some time off /a leave of absence because I am stressed and depressed.

* I take medication for a disorder that makes it difficult to get up early in the morning.

If the employee’s need for accommodation is not obvious to the employer, the employer can ask for documentation of the disability and functional limitations

by a professional. Similarly, most teachers may not have specific information about the diagnosis, but Disability Services Offices in colleges and universities require professional documentation of the disability.

Possible factors related to mental illness and functioning in the workplace:

* The irregular nature of mental illness - The irregular nature of mental illness may create problems in establishing or maintaining consistent work or school patterns. Some individuals may need time off for medical appointments or to recuperate. The irregular nature of mental illness might also impair an individual's performance.

* Stress associated with non-disclosure - Anxiety often accompanies the effort to hide an illness and its symptoms. Many individuals do not disclose an illness for fear of discrimination. This fear may be compounded if an employee feels that a job is in jeopardy or a student worries that admission may not be offered.

* Side effects of medications - Despite their effectiveness for many people, medications can also have side effects that create difficulties at work or in school.

Each person has an adjustment period after starting, changing the dose of, or stopping medication. Some of the most common side effects include:

o drowsiness

o dizziness

o dry mouth

o nervousness

o headaches

o shakiness

o confusion

o weight gain

* Interrupted education or training - Many people first develop symptoms of mental illnesses between the ages of 15 and 25 and traditional educational or vocational training may be delayed. This may affect their qualifications for jobs or educational programs.

* Co-morbidity - The National Institute of Mental Health (NIMH) reports that 30% of adults with a mental illness also have had a diagnosable alcohol and/or drug abuse disorder during their lives. In addition, 53% of adults who have had substance abuse disorders have had one or more mental illnesses during their life times. Treatment and accommodation in these cases need to address the effects of substance abuse as well as the effects of the person's mental illness.

Ideas for accomodations:

* Restructuring jobs

- reassign fill in reception duties to another typist

* Adjusting work schedules

- time off for therapy appointments,

- later starting time because of morning drowsiness due to medications

* Flexible leave

- use of sick leave for mental health reasons,

- extended leave without pay due to hospitalization

* Specialized equipment & assistive devices

- use of e-mail to deliver daily instructions

* Modifying work sites

- install wall partitions around workstation to minimize distractions

* Providing special transportation

- assigned parking space closer to building to manage panic condition

* Providing human assistance

- instead of readers & interpreters, provide job coach or mentor

Research studies on the most frequently used accommodations for people with psychiatric disabilities include the following:

* Job coach assistance in hiring

- arranging the interview,

- help in completing job applications,

- help in interview

* Job coach support on the job

- being on site to provide support or training in job tasks

* Flexible scheduling

- changes in the start or end of the workday hours,

- part time hours,

- more frequent breaks,

- sick leave for mental health reasons

* Changes in supervision

- providing extra supervision hours,

- involving a job coach in supervision meetings,

- modifying the way feedback and instructions are given

* Changes in training

- allowing extra time to learn job tasks,

- assistance in orientation

* Modified job duties

- exchanging or deleting minor job duties

Case Illustrations of workplace accommodations:

* An editor for a major publishing company who has Multiple Personality Disorder has difficulty concentrating on her proofreading tasks when the different personalities talk to her while she is working. She works in an open area with others.

The employer allows her to wear headphones playing soft music to screen out the voices, helping her to concentrate. The headphones prevent other employees from hearing the music.

This same editor began to enter the hospital numerous times after being hired into a permanent position. This affected her ability to complete book projects with specific timelines.

The publishing company transferred her to doing contract editorial work which could be more short-term and time-limited, and reassigned work to other contract workers if a hospitalization reoccurred. She was allowed a graduated return to work after hospitalizations. She was also able to modify her work

schedule on a weekly basis to attend therapy appointments during work hours, working extra hours on other days or evenings.

* A computer programmer with severe anxiety, panic attacks and depression forced her to take a medical leave of absence as her symptoms increased. She was extremely anxious about returning to work because she might have difficulty remembering the commands and concentrating in a busy work area. A visit to her worksite revealed that her office was located in the center of a space with cubicles, next to a noisy printer shared by others, and surrounded by private offices with doors that the Executives occupied. Exploration of the reasons for her anxiety revealed that many people walked by her office and stopped to talk to her on the way to the printer or to assign her tasks, which interrupted her train of thought, as well as made her anxious because she did not feel

comfortable talking to people. Her cubicle wall next to her desk was only three feet high, allowing visual contact with anyone that walked by.

Several accommodations were suggested. A full height wall next to her desk minimized visual distractions and casual conversation. Written instructions or use of e-mail was recommended for assigning her new tasks. A template that fit over her keyboard with commonly used commands helped her remember commands. A graduated return to work helped to build her stamina and confidence.

FAQs for HR folks:

Q. How do I know if someone really has a psychiatric disability?

A. Because there is still a lot of stigma associated with mental illness, many people would not choose to acknowledge a mental illness unless they really needed to do so. However, if you are unsure whether the person has a disability that is covered under the Americans with Disabilities Act, you have a right to ask for documentation of the disability, the nature of the functional limitations caused by the disability that might interfere with job performance and accommodations that may address those limitations. This type of documentation can be provided by a medical doctor, clinical psychologist, or other licensed professional such as a licensed social worker, licensed mental health counselor or certified rehabilitation counselor. You are not allowed to ask for records, history of the illness, treatment or other types of personal information that are not relevant to the work situation.

Q. I have heard that a person can use “plain English” to tell me that they have a disability. What kinds of words can someone use to disclose a psychiatric disability?

A. The new EEOC guidance on the ADA and people with psychiatric disability states that an applicant or employee can use “plain English” to notify an employer about a disabling condition in requesting reasonable accommodations. What this means is that there are no magic words that the person must use.

Some of the examples given in the guidance suggest that someone may say that they are “depressed and stressed” and need time off from work to deal with it.

Other examples of what you might hear include:

“I have had emotional problems that I have been treated for, and may need time off for medical appointments.”

“I have a medical condition that requires breaks every 2 hours.”

“I have a chemical imbalance that periodically affects my energy levels. Every year or so, my doctor has to adjust the chemicals in my system in the hospital for about 2 weeks.”

Q. Once an employee discloses a psychiatric disability, what kind of information do I need and how can I get it?

A. In general, you need to know what the effect of the disability will be on the employee’s functioning in the job. Specifics regarding psychiatric history, diagnosis and medications are not as relevant as the specific barriers that they present in the workplace. Most employers want to know such practical information such as:

• What behaviors will I see or can I expect as a result of the illness or treatment?

• How will these behaviors interfere with job functioning?

• What should I do if I see these behaviors (what strategies or accommodations will help)?

One of the best sources of information is the employee him or herself. The employee has experience with the illness and its effects on functioning. Other sources of information may be a professional working with the person, your Employee Assistance Program staff, or the Job Accommodation Network, (800-526-7234), which provides free telephone consultation regarding employment and accommodations issues.

Q. What kinds of accommodations work for someone with a psychiatric disability?

A. Various types of mental illness may affect the ways that someone thinks, communicates, sleeps or feels, among other activities. The types of accommodations that work tend to be those that address these social, emotional and cognitive types of activities, such as changes in interpersonal communication, supervision and support, flexibility in schedules, and adjustments in how directions are given, tasks are organized, or time is managed.

Q. What do I say to coworkers who want to know why an employee is getting special treatment?

A. It is illegal to share confidential information about an employee’s disability, medical condition or accommodation (indicating a disability) without the permission of the employee, with the exception of those who need to know on a business necessity basis. This means that only the person providing or approving the accommodations, those in charge of safety and risk procedures, or those responsible for Equal Opportunity or Affirmative Action need to know.

All information about disability and accommodations must be kept separate from personnel files.

Coworkers who question why one employee gets to come in later or has cubicle walls installed are not entitled to know that these are accommodations or are due to a disabling condition. One complication is that many of the simple accommodations that work for someone with a mental illness are things that many employees may wish to have themselves. Employers can respond to such comments by stating that they are following employment laws (as suggested in the EEOC Guidance), or that they try to support all employees in doing their jobs, leaving the opportunity open to discuss that employee’s needs at a later time.

Q. Can I fire an employee with a disability who is not doing the job?

A. The ADA only protects “qualified” employees. Someone is qualified if s/he can perform the job, either with an accommodation or without an accommodation. While legally employers must provide reasonable accommodations to qualified employees, employers are not expected to change the standards of performance, or the essential functions of the job itself, with the exception of modifying or eliminating marginal, or nonessential functions of the job. Typical procedures for taking disciplinary actions with employees who are not performing the essential functions of the job can be followed. If you are unsure whether you should accommodate or discipline, you can contact the Job Accommodation Network at 1-800-526-7234 for free technical assistance in sorting out these questions.

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