Are you prepared for questions like these:
- A top-performing employee is diagnosed with depression and now says her medication makes it impossible for her to get to work on time. Must you change her work schedule?
- An 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?
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 tasks 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(EAP), have we now “perceived” the individual as disabled?
A: Not necessarily. Several courts have said referral to an EAP does not establish conclusively that an employer regarded the employee as disabled. In most instances, the referral was to determine if the employee is 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. You may need to disclose the employee’s mental disability to a supervisor if it’s necessary to provide an accommodation.
4. Excuse for misconduct?
Q: Do we have to tolerate misconduct by employees with mental disabilities?
A: No. Most courts and the EEOC agree that employers can discipline employees with mental disabilities for conduct-rule violations. You can generally hold mentally disabled employees to the same 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 “interactive process” 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.
• EEOC enforcement guidance on the ADA and psychiatric disabilities, www.eeoc.gov/policy/docs/psych.html.
• Q&As about persons with intellectual disabilities in the workplace and the ADA, www.eeoc.gov/facts/intellectual_disabilities.html.
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