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For Immediate Release, February 24th

 

Dealing with American With Disabilities Act (ADA)

On March 25, 1997, the EEOC issued their initial guidance for employers concerning persons with psychiatric disabilities. The initial guidance was lengthy and confusing as to how the Americans With Disabilities Act (ADA) applies to persons with psychiatric disabilities in the workplace. The guidance, which was intended to provide answers to employer's question, has created some confusion and questions about hiring and accommodating psychiatric disabled employees.

Your Employment Risk Solutions, Inc. has updated their Compliance Pro Employment Risk Management and Compliance software programs to include a practical interpretation of the EEOC Guidance on Psychiatric Disabilities under the ADA. Compliance Pro Federal, State, and Financial Institution Specific programs provide detailed, comprehensive interpretations of all federal employment, labor laws and regulations, including practical guidance.

The ADA was enacted to protect the employment and accessibility rights of the disabled. It covers a wide range of disabilities and applies to all private employers with 15 or more workers and all places of public accommodation and services. The law prohibits discrimination in all employment practices including: Advertising; Recruitment; Advancement; Compensation; Training; Termination; Job application procedures; Hiring; Leaves; Fringe benefits; Layoffs; All other employment practices.

The ADA protects individuals who have a disability, individuals who have a history of a disability, and individuals who have a relationship with a disabled person. An individual with a disability is defined as a person with physical or mental impairment that substantially limits one or more major life activities. The range of physical and mental impairments covered includes visual or hearing, mobility, mental retardation, AIDS (or other HIV diseases), and learning disabilities. The determination of whether the impairment substantially limits a major life activity is made on a case-by-case basis and without regard to mitigating measures, such as medication. Major life activities include: Seeing; Hearing; Speaking; Walking; Breathing; Performing manual tasks; Learning; Caring for oneself; Working.

What is required of an employer? Employers are required to make reasonable accommodation for any disabled worker or job applicant who asks for it, provided the accommodation does not create a hardship for the employer. If an individual is qualified to perform the major functions of the job requirements except for limitations caused by the disability, the employer must determine whether the person could perform the job with reasonable accommodation.

How Does the ADA Apply To persons with Psychiatric Disabilities? Psychiatric Disabilities as defined by the ADA include any mental or psychological disorder, such as emotional or mental illness. Examples of "emotional or mental illness (es)" include major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder and post-traumatic stress disorder); Schizophrenia, and personality disorders. Whether the disability substantially limits a major life activity is determined without regard to whether medication is taken to control the illness.

Examples of reasonable Accommodation include changing workplace policies or procedures; permitting time off; modifying work schedules or adjusting supervisory methods. Reasonable accommodation does not require employers to be responsible for or monitor an employee's medication intake.

Employers may not ask about psychiatric disability or the history of treatment for a psychiatric disability before making an offer of employment. After a job offer is made, employers may require a psychiatric exam and may ask questions about the disability, if all entering employees in the same job category are subjected to the same exam and questions.

Reasonable Accommodation must also be provided, for individuals with psychiatric disabilities, to meet workplace conduct rules that are job related. However, an employer may discipline an individual with a psychiatric disability for violating workplace conduct standards if the standard is job-related, a business necessity, and the same discipline would be imposed on any employee without a disability.

Your Employment Risk Solutions Inc.'s recommends an employer create a brief Compliance Checklist for Hiring:

1. Review all job advertisements prior to publication

2. Review the job description for each position. The job description should list the functions that are truly essential to the job.

3. Review Application forms and interview questions. Make sure there are no references to the applicant's medical history, physical or mental disabilities, workers' compensation history, or physical appearance.

Compliance Pro includes forms (automatically tailored with the company name where appropriate) from job description, applications, disciplinary action, FMLA and medical leave, harassment reporting and investigation to resignation and termination. The Employee Health and Safety Manual contains minimum safety policies required by OSHA, Back Injury Prevention Program, Workplace Violence Prevention Program, Ergonomics, Bio-mechanics, and a Health and Wellness Program.

Your Employment Risk Solutions, Inc. will soon be announcing another update to Compliance Pro software programs covering the EEOC guidance on Enforcement Guidance on Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms that was issued on December 8, 1997.