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5 questions & answers about accommodating mental disabilities

by on
in Employment Law,Human Resources

A top-performing employee is diagnosed with depression and now says her medication makes it impossible for her to come to work on time. Must an employer change her work schedule?

A job applicant voluntarily informs you that he is intellectually disabled, but says he can perform his job with a job coach. Is that a reasonable accommodation?

Are you prepared to answer those questions ... and more?

The ADA requires employers to reasonably accommodate applicants or employees with mental or physical disabilities who are qualified to perform the job’s essential functions with or without a reasonable accommodation.

Still, it’s a tricky issue. These questions and answers come from recent court cases and EEOC guidance:

1. What if performance slips?

Q: How should we handle an employee whose performance is deteriorating and whom we suspect may have a mental disability?

A: You can inquire about an em­­ployee’s potential mental disability if the inquiry is job-related and consistent with business necessity. The EEOC says that means an employer can ask about possible mental disabilities when the employer has a reasonable belief that performance of essential job functions is impaired by a medical condition.

The EEOC says you must first have some objective evidence that the deteriorating performance is related to a mental condition (such as knowl­­edge that the employee suffered from a mental impairment in the past) be­­fore making such an inquiry.

Thus, a supervisor can inquire about an employee’s repeatedly forgetting assigned tasks, having difficulty interacting with co-workers or being late for work. Supervisors cannot, however, ask whether a mental condition has caused those problems, unless they have some objective evidence.

2. Perceived as disabled?

Q: If we refer someone to our employee assistance program (EAP), have we now “perceived” the individual as disabled?

A: Not necessarily. Several courts have held that referral to an EAP does not establish conclusively that an employer regarded the referred em­­ployee as disabled. In most in­­stances, the employer referred an employee to determine if the employee would constitute a direct threat to himself or others, or to determine whether the employee was fit to return to duty.

The safest course is to permit a satisfactorily performing employee to continue working while participating in the program.

3. Confidentiality concerns?

Q: What should we tell other em­­ployees about the accommodation?

A: Keep private all information on employees’ medical conditions, including any mental disability. Maintain such information separate from general personnel files as a confidential medical record.

Note: The EEOC recognizes that an employer may need to disclose an employee’s mental disability to a supervisor if necessary to provide a reasonable accommodation.

4. Excuse for misconduct?

Q: Do we have to tolerate misconduct by an employee who may have a mental disability?

A: No. Most courts and the EEOC agree that an employer may discipline an employee with a mental disability, consistent with existing conduct rules.

Mentally disabled employees can generally be held to job-related standards that apply to all employees.

5. What’s ‘reasonable’?

Q: What kinds of accommodations are reasonable?

A: You should assess an employee’s request for accommodation on a case-by-case basis, evaluating the preferred accommodation and, if warranted, suggesting alternatives. This exchange is the “interactive process” envisioned by the EEOC and is expected in any accommodations case.

For people with mental disabilities, you can consider modified work schedules, time off (both paid and unpaid), room dividers, minimizing distractions, offering instructions in a variety of formats and modifying workplace policies.

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