NAVIGATING REASONABLE
ACCOMMODATIONS FOR
MENTAL HEALTH DISABILITIES
Michael J. Spagnola, Esq.
mspagnola@siegeloconnor.com
Hartford Office:
150 Trumbull Street
Hartford, CT 06103
(860) 727-8900
New London Office:
14 Eugene O’Neill Drive
New London, CT 06320
(860) 442-4747
Background
• The National Institute of Mental Health estimates:
• 1 in 5 people will experience a psychiatric disability in their
lifetime
• 1 in 4 Americans currently know someone who has a
psychiatric disability
• 1 in 17 adults live with a serious mental health impairment
such as schizophrenia, major depression or bipolar disorder
• Most employers have at least 1 employee with a psychiatric
disability
• U.S. Substance Abuse and Mental Health Services
Administration estimates that each year more than 41
million Americans (18% of the population) experience
some type of mental illness
ADA – Title I Basics
• Prohibits employers from discriminating against
qualified individuals with disabilities in job application
procedures, hiring, firing, advancement,
compensation, job training, and other terms,
conditions, and privileges of employment
• Applies to employers with 15 or more employees
• Also applies to employment agencies and to labor
organizations
• Requires “reasonable accommodation” for individual
with disability if needed in order to perform “essential
functions” of a job
CFEPA Basics
• Prohibits employers from discriminating in
employment because of the individual’s “present or
past history of mental disability, intellectual disability,
learning disability….”
• Applies to employers with three or more employees
• Case law has determined that it requires employers to
provide “reasonable accommodation” similar to
federal ADA requirements
• Note: generally, CT courts rely on federal precedent
for guidance in enforcing CFEPA
Analysis
3 step analysis:
1. Does the individual have a disability?
2. Is the individual with a disability qualified?
3. Is there a reasonable accommodation that
can be made so that the individual with a
disability can perform the essential
functions of the job?
DOES THE INDIVIDUAL
HAVE A DISABILITY?
Statutory Definition
• Mental Impairment under ADA – “any
mental or psychological disorder, such as
mental retardation, organic brain
syndrome, emotional or mental illness, and
specific learning disabilities”
• CEFPA
• Mental Disability: an individual who has a
record of, or is regarded as having one or more
mental disorders, as defined in the most recent
edition of the American Psychiatric
Association's "Diagnostic and Statistical
Manual of Mental Disorders”
Definition of Disability
• ADAAA – “definition construed in favor
of broad coverage of individuals”
• 3 Types:
• Impairment that substantially limits one or
more major life activities
• Record of a substantially limiting
impairment
• Being regarded as having a substantially
limiting impairment
Inquiries About Disability
• Before job offer made: Questions about disability and medical
examinations generally prohibited
• All applicants may be asked if they require accommodations for
application process
• Applicant can be asked to describe/demonstrate how they would perform
specific functions of job
• Specific applicants with obvious or known disabilities may be asked if
they will need reasonable accommodation for job if employer has
reasonable belief that accommodation will be needed
• After job offer made: Employer may ask about disability and may
require medical examination if required of all entering employees
in same job category
• During employment: Employer may ask about disability if
employer has a reasonable belief based on objective evidence
that individual will be unable to perform essential functions due
to medical condition or will pose a direct threat due to medical
condition
Major Life Activities
• Typically implicated with mental health
disabilities
• Thinking
• Concentrating
• Interacting with others
• Sleeping
• Caring for oneself
• Working
• Communicating
Substantially Limited
• EEOC regulations – “not meant to be a demanding
standard”
• Impairment is a disability if individual:
• Unable to perform a major life activity; or
• Restricted in the condition, duration or manner under which a
major life activity can be performed as compared to the average
person
• Duration must be more than several months
• Consider severity
• Without regard to “ameliorative effects” of mitigating
measures
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Medication, medical supplies, equipment, or appliances
Prosthetics
Hearing aids and other hearing devices
Coping strategies
Episodic/Remission
• Conditions that are episodic or in
remission are disabilities if they
substantially limit a major life activity
when active
• Examples: Bipolar disorder and PTSD
“Record Of” Disabled
• Substantially limited in the past
• May be relevant in a case where
individual is using a mitigating measure
to control the condition
“Regarded As” Disabled
• Impairment is not substantially limiting,
but individual is treated as such
• No impairment, but employer treats
individual as if they have a substantially
limiting impairment
THE CFEPA CONUNDRUM
Diagnostic and Statistical Manual of Mental Disorders
in excess of 900 pages; extremely broad in scope.
Lists following as mental disorders:
• Oppositional defiant disorder
• Intermittent explosive disorder
• Pyromania
• Kleptomania
• Alcohol use disorder
• Several drug use disorders
• Gambling disorder
• Paraphilic disorder
ADA Mental Health Disabilities
• Personality Traits Not Covered
• Poor judgment
• Chronic lateness
• Irritability
• Inability to get along with supervisors or co-workers
Documentation
• Employers may obtain reasonable
documentation that an employee has a mental
disability and needs an accommodation
• Employer entitled to no more information than is
necessary to determine that individual has a
disability and needs an accommodation
• Employer may require documentation come
from a health care professional
IS THE INDIVIDUAL WITH
A DISABILITY QUALIFIED?
Qualified Individual
• Employee or applicant meets requisite
knowledge, skills, and experience of position
and can perform “essential functions” of
position with or without reasonable
accommodation
• Meets basic skill, education, training and job-related
requirements
Essential Functions
• Job function may be considered essential for
several reasons, such as:
• Job exists to perform that function
• Function requires specialized skills or expertise and
person is hired for that expertise
• Only limited number of employees to perform
function
Essential Functions
• Evidence that function is essential:
• Employer’s judgment
• Terms of written position description
• Experience of current or past employees
• Amount of time spent performing the function
• Consequences of not performing the function
Humphrey v. Memorial Hospitals
Association (9th Cir. 2001)
• Medical transcriptionist with OCD asked to
work at home; employer denied request due
to employee’s disciplinary record for
absenteeism/tardiness prior to diagnosis
• Court: Working from home might be
reasonable accommodation
• Physical attendance not essential job function
• Association allowed telework for other employees
in same position
Bona Fide Occupational Qualification
• Potential defense to claim of facially discriminatory
job requirement under CT law
• Not a defense under federal law
• Exists when specific characteristic necessary for
performance of job
• Example: requiring excellent physical condition, and
setting cap on cholesterol levels, may be a
permissible requirement for police officers
IS THERE A REASONABLE
ACCOMMODATION THAT CAN BE MADE
SO THAT QUALIFIED INDIVIDUAL WITH A
DISABILITY CAN PERFORM THE
ESSENTIAL FUNCTIONS OF THE JOB?
Reasonable Accommodation
• ADA and CFEPA require employers to provide
"reasonable accommodations" to qualified
employees with disabilities
• Primary consideration to what
accommodation to choose should be given to
employee’s proposed accommodation, but
employer may ultimately choose from among
accommodations as long as the one given is
effective
Basics
• Adjustments to work setting that make it possible for
qualified employees with disabilities to perform
essential functions of their jobs
• Change in the way things are typically done
• Process of developing and implementing
accommodations is individualized and should begin
with input from employee
• Accommodations vary and are situation/individual
specific
• Accommodations cannot cause undue hardship on
operation of employer’s business
Identifying Need
• Performance/conduct declines
• Employee verbally notifies employer
• “Request for Reasonable Accommodation” form
• Individual may use “plain English” and not mention ADA or
CFEPA or even use “reasonable accommodation.”
• “I need a day off because I’m depressed and stressed.”
• “My antidepressant is making me dizzy and I need a break.”
• “My psychotherapist thinks I would benefit from a more flexible
working schedule.”
• Extended absences/illnesses/medical
• Communication from employee’s family member or doctor
• Employee does not lose the right to request an
accommodation because did not do so during the
application stage
Ekstrand v. Sch. Dist. of Somerset (7th
Cir. 2009)
• Teacher with seasonal affective disorder assigned to noisy
classroom without outside windows; requested quieter room with
natural light and better ventilation; school worked to remedy noise
distractions and ventilation problem, but did not reassign teacher to
room with natural light, despite repeated requests
• Depression and anxiety worsened, requiring medical leave; during
leave period, teacher repeated her requests for room switch; doctor
provided note to school district indicating importance of natural
light for an individual with seasonal affective disorder, and link
between teacher's room location and symptoms
• Court:
• Prior to doctor’s note, school took accommodating steps to resolve teacher's
concerns; because school had no evidence that natural light was crucial to
alleviating symptoms, it acted reasonably and was not required to provide
preferred accommodation of room with natural light
• After doctor’s note, school district had notice of importance of natural light,
and had obligation to "provide the specifically requested, medically necessary
accommodation” absent undue hardship
Miller v. Illinois DOT (7th Cir 2012)
• Bridge worker of 5 years suffered panic attack and was
diagnosed with acrophobia (fear of heights); prior to
diagnosis, supervisors allowed him to swap tasks among
co-workers to avoid occasional task that he could not do;
bridge worker requested that other employees substitute
for him when a task required working above 25 feet in an
exposed or extreme position
• Court: Acrophobia is a disability; where bridge employees
routinely shared and swapped tasks, jury could find
accommodation request was reasonable
• Regarded as disabled claim: After diagnosis, IDOT kept him from
doing any bridge crew work including tasks that could be
performed on the ground even though he was cleared to return to
work with no significant restrictions; this could support a
“regarded as” disabled claim
Interactive Process
• Once a request has been made, employer
must engage in interactive process with the
individual
• Process will involve determining whether
individual has a disability and what
accommodations, if any, are possible
Not Required
• Lowering production/performance standards
• Excusing violations of conduct rules that are
job-related and consistent with business
necessity
• Removing an essential function
• Monitoring individual’s use of medication
• Actions that would cause undue hardship to
employer
Typical Examples
• Flexible Workplace - Telecommuting and/or working
from home
• Scheduling - Part-time work hours, job sharing,
adjustments in start or end of work hours
• Leave - Sick leave for reasons related to mental
health, flexible use of vacation time, additional unpaid
or administrative leave for treatment or recovery
• Breaks - Breaks according to individual needs rather
than a fixed schedule, more frequent breaks and/or
greater flexibility in scheduling breaks, telephone
breaks during work hours to call professionals and
others needed for support
Accommodating Concentration Issues
• Reduce distractions in the work area:
• Provide space enclosures, sound absorption panels, or private
office
• Allow for use of white noise or environmental sound machines
• Plan for uninterrupted work time
• Purchase organizers to reduce clutter
• Increase natural lighting
• Allow flexible work environment
• Divide large assignments into smaller tasks and
goals
• Restructure job to include only essential
functions
• Provide memory aids such as schedulers,
organizers, or e-mail applications
Accommodating Attendance Issues
• Allow flexible work environment:
• Flexible scheduling
• Modified break schedule
• Leave for counseling
• Work from home
Accommodating Emotional Issues
• Encourage use of stress management techniques to
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deal with frustration
Allow presence of support animal
Allow telephone calls during work hours to doctors
and others for needed support
Allow flexible breaks
Refer to employee assistance program (EAP)
Accommodating Fatigue Issues
• Allow flexible work environment
• Provide goal-oriented workload, not hour-
based
• Reduce or eliminate physical exertion and
workplace stress
• Implement ergonomic workstation design
Accommodating Memory Issues
• Allow use of job coach
• Provide mentor
• Provide minutes of meetings and trainings
• Allow additional training time
• Provide written checklists
• Use color coding scheme to prioritize tasks
• Use notebooks, planners, or sticky notes to record
information
• Provide labels or bulletin board cues to assist in
location of items
Undue Hardship
• Limitation on employer’s obligation to provide
reasonable accommodation
• Significant difficulty or expense and focuses on
resources and circumstances of particular employer
in relationship to cost or difficulty of providing
specific accommodation
• Not only financial difficulty, but to accommodations
that are unduly extensive, substantial, or disruptive,
or those that would fundamentally alter nature or
operation of business
• Assessed on case-by-case basis
Direct Threat
• Employer may refuse to employ or provide
accommodations to individual who poses a "direct threat"
to health or safety of him/herself or others
• Determination that individual poses direct threat to self or
others cannot be made simply based on stereotypical
generalizations about mental illness
• Must be based on objective evidence from treatment provider or
another credible source that individual’s present condition makes
him or her direct threat to self or others
• Hoback v. City of Chattanooga (E.D. Tenn. 2012) – Police
officer deployed to Iraq, upon return diagnosed with PTSD.
One psychiatric evaluation said “suicidal and dangerous.”
Terminated because he “was not psychologically fit to
safely perform the duties as a police officer.” Court
affirmed jury’s verdict in favor of officer because
employer’s “direct threat” determination was not based on
objective medical evidence.
OTHER IMPORTANT
THOUGHTS TO CONSIDER
Management Training
• Flexible and supportive supervision style - positive
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reinforcement and feedback and open communication with
supervisors regarding performance and work expectations
Understand and use additional forms of communication
geared to employee's preferred learning style (written,
verbal, e-mail, demonstration); creation and
implementation of written tools such as daily "to-do" lists
and step-by-step checklists
Development of strategies to deal with problems before
they arise
Consider written work agreements that include any agreed
upon accommodations, long-term and short-term goals,
expectations of responsibilities and consequences of not
meeting performance standards
Relevant training for all employees, including co-workers
and supervisory staff
Confidentiality
• Information obtained regarding medical
condition or history of applicant must be
collected and maintained on separate forms
and in separate medical files, except that:
• Supervisors and managers may be informed
regarding necessary restrictions on the employee’s
duties and necessary accommodations