with American With Disabilities Act (ADA)
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
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.
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
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.
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.
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.