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

1
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

2
 * 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

3
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.

4
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

5
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.