For nearly five years now, the nation's employers have had to adjust the workplace environment in order to reasonably accommodate the needs of disabled individuals in compliance with the Americans with Disabilities Act (ADA). So when the Equal Employment Opportunity Commission (EEOC), the federal agency charged with administering the law, issued guidelines in March setting forth its views on assisting workers with psychiatric disabilities, it most likely didn't expect the controversy that ultimately erupted.
"The guidance answers the most commonly asked questions about how ADA affects persons with psychiatric disabilities," said EEOC chairman Gilbert F. Casellas. "It provides practical instruction to employers and persons with psychiatric disabilities on their respective rights and responsibilities."
In fact, since the law became effective in July 1992, psychiatric and emotional disabilities comprised 12.7% of the 72,687 claims filed by Sept. 30, 1996, second only to back impairments. Considering the volume of claims, the EEOC developed the guidelines to shed some light on questions that have accumulated over time.
Instead, the EEOC's pronouncement renewed concerns, mostly from employers, that workers would use the guidelines to turn poor performance and on-the-job misconduct into mental health disabilities. As a result, businesses worry that they will have to spend more money accommodating any number of mental health conditions, and will end up defending more lawsuits from employees claiming mental or emotional disabilities.
"The problem with mental stuff is that there is no objective way to tell whether the disability exists," said James P. Mulkeen, a labor lawyer with Los Angeles-based Manatt, Phelps & Phillips. "The concern is that people are going to be asking for screwy accommodations."
Although the ADA has worked relatively well for those with physical disabilities, Mulkeen said there was greater potential for malingering and abuse when it comes to mental conditions, citing the huge cost to employers generated by stress claims under workers compensation laws.
"Time will tell, when employers start disciplining employees for poor job performance, whether people will come up with mental disabilities as an excuse," Mulkeen said. "When people can't perform their jobs and they come up with things, I don't know what will happen. But there has been a huge reaction to this."
The sentiment was mirrored by Christopher Bell, an employment lawyer with Jackson, Lewis, Schnitzler & Krupman in Minneapolis. "For me the bottom line is that potentially it will allow a jerk to hide behind the ADA," he said in an April 30 New York Times article. "It does this because it says traits such as poor judgment, poor impulse control, curt and rude behavior and chronic tardiness all can be symptoms of a mental impairment that is a disability."
The "enforcement guidance" issued by the EEOC does not have the force of law, but such documents are often given great weight by courts when they are called upon to interpret compliance with the ADA. In addition, it outlines what the commission considers violations of the law, interpretations that are often at variance with company policies that view the law differently. The guidelines, nevertheless, can become the basis for complaints generated by employees who are refused reasonable accommodations.
Meanwhile, psychiatrists and other mental health practitioners will play a key role in implementing the new guidelines. Often, professional assessments and recommendations will determine whether an impairment rises to the level of disability, whether a reasonable accommodation is feasible, and if particular conduct represents a "direct threat" to others in the workplace.
According to the ADA, a "disability" exists when a person suffers a physical or mental impairment that "substantially limits one or more of the major life activities," or if a person has a record of such an impairment or is regarded as having such an impairment.
Under the ADA rules, a "mental impairment" includes "[any] mental or psychological disorder, such as...emotional or mental illness." Examples specified in the guidelines include major depression, bipolar disorder, anxiety disorders, schizophrenia and personality disorders. Although the DSM-IV is "relevant for identifying these disorders," the EEOC recognizes that not every condition contained in the manual is a "mental impairment" that rises to the level of a disability.
As a result, the medical opinion of a psychiatrist, psychologist or other mental health professional will play a key role in determining whether a condition so "substantially limits" a "major life activity" as to constitute a disability under the ADA. According to the guidelines, there is no exhaustive list, but major life activities that can be impaired such as learning, thinking, concentrating, interacting with others, caring for oneself, speaking, performing manual tasks, working, or sleeping.
What is important to the EEOC, according to the guidelines, is how the impairment affects the individual and not generalizations about the condition. In one example, the EEOC describes an employee who undergoes temporary distress as the result of the end of a romantic relationship. Although he received a diagnosis of "adjustment disorder," the impairment was considered short-term and did not significantly restrict major life activities. As a result, the employee would not be considered disabled.
On the other hand, an employee taking medication for bipolar disorder who is experiencing increasingly severe and frequent cycles of depression and mania who is becoming socially withdrawn and unable to care for himself represents the other end of the spectrum. Once his doctor determines that the condition is indefinite and long-term and will significantly restrict major life activities, a disability under the law exists.
Of greatest importance is determining what reasonable accommodation can be made to keep the mentally ill worker employed. According to the guidelines, "mental health professionals, including psychiatric rehabilitation counselors, may be able to make suggestions about particular accommodations and, of equal importance, help employers and employees communicate effectively about reasonable accommodation." Generally, items such as physical changes in the workplace, adjustment of work schedules or modification of nonessential workplace policies can be required by the ADA if it means a disabled person can continue to do the job.
Robert Drake, M.D., a professor of psychiatry at Dartmouth Medical School in Hanover, N.H., and a researcher with the New Hampshire/Dartmouth Psychiatric Research Center, has followed more than 1,000 seriously mentally ill patients over the last eight years. The studies reveal that with the proper programs and supports, most seriously mentally ill can return to competitive employment without disrupting the workplace or requiring major accommodations.
"Our experience with employers is that they generally are not aware that they already have a lot of people working for them who have psychiatric disabilities. And they have unrealistic ideas about what the accommodations issue might mean," Drake said. "Once they see how few accommodations are needed, they seem to be very positive about the experience...But employers who don't have the experience, and the lawyers who are worried about potential litigation, do seem to be inflaming the situation, and the rhetoric about it all."
In New Hampshire, Drake said, interventions on behalf of the seriously mentally ill have increased employment rates from 9% to 25%.
Deborah Becker, M.Ed., CRC, a senior project director for occupational research study at the center, said the most significant problems for the mentally ill relate to social rather than job skills. As individuals settle into an employment and life routine, they tend to use fewer services, a factor that could mitigate against the costs of ADA compliance, she said.
Copies of the EEOC guidelines can be obtained by calling the commission's Publications Distribution Center at (800) 669-3362, or can be obtained at its Web site, www.eeoc.gov.