Accommodating Employees with
Mental Health-Related Disabilities
SAI Law Conference
February 9, 2016
Miriam Van Heukelem
Ahlers & Cooney, P.C.
mvanheukelem@ahlerslaw.com
• Applicable Laws:
• Americans with Disabilities Act (“ADA”): prohibits
discrimination against qualified employees and applicants
because of a known physical or mental disability.
• Rehabilitation Act: prohibits discrimination on the basis of
disability in federally funded programs.
• Iowa Civil Rights Act (“ICRA”): prohibits discrimination
against a qualified person with a disability because of the
person’s disability
• Definitions: “Qualified Individual”
– To be a “qualified” individual with a disability under the
ADA and ICRA, a disabled person must be “qualified,” or
able to perform the essential functions of their position
– Essential functions are the fundamental job duties of the
employment position the individual with a disability holds
or desire, with or without a reasonable accommodation.
– Main source: Job Descriptions
Key Issue: Can employee still perform the essential functions with or
without accommodations?
• Definitions: “Disability”
– A physical or mental impairment that
substantially limits one or more major life
activities of such individual;
– a record of such an impairment; or
– being regarded as having such an
impairment.
– Definitions: “Mental impairment”
• “Any mental or psychological disorder,
such as … emotional or mental
illness[.]”
–
Examples include but are not limited to PTSD,
Major/Chronic Depressive Disorder, Anxiety/Depressive
Disorders, Bipolar Disorder, Obsessive Compulsive
Disorder, Schizophrenia, other disorders or conditions
affecting personality and mental capacity
• Potential signs of mental impairment:
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Working slowly or missing deadlines
Erratic, uncharacteristic, or unexplained behavior
Increasing absenteeism and calling in sick
Irritability and anger with co-workers and supervisor
Difficulty concentrating
• More potential signs:
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Appearing numb or emotionless
Withdrawing from work activity
Overworking
Forgetting directives, procedures and requests
Having difficulty with work transitions, changes in
routines, or making decisions
Employers and co-workers should
avoid trying to diagnose an employee’s
condition or mental impairment. Such
diagnoses should be left to appropriate
health care professionals.
Example: Sam, an employee who has an anxiety
disorder, says that his mind wanders frequently and that
he is often distracted by irrelevant thoughts. As a result,
he makes repeated errors at work on detailed or complex
tasks, even after being reprimanded. His doctor says that
the errors are caused by his anxiety disorder and may last
indefinitely.
 Does Sam have a “disability”?
Source: EEOC Enforcement Guidance
Steve states that he has trouble concentrating when he is
tired or during long meetings. He attributes this to his
chronic depression. Although his ability to concentrate may
be slightly limited due to depression (a mental
impairment), it is not significantly restricted as compared
to the average person in the general population.
 Does Steve have a “disability”?
Source: EEOC Enforcement Guidance
• Definition: “Substantially limits”
– Need not prevent, or significantly or severely restrict,
the individual from performing a major life activity in
order to be considered substantially limiting
– Fact-specific inquiry
– Episodic: An impairment that is episodic or in
remission is a disability if it would substantially limit a
major life activity when active
• Definition: “Substantially limits”
– Mitigating Measures/Medications:
• Federal law: Whether an impairment substantially limits a
major life activity is made without regard mitigating
measures such as medication, medical supplies, equipment,
etc.
• Iowa law: Cannot consider MMs in determining the existence
of an impairment, but may be considered in determining
whether the impairment substantially limits a major life
activity.
• Definitions: “Major Life Activity”
– Includes:
• Bodily Functions such as immune system,
digestive, neurological, etc.
• Life Tasks such as caring for oneself, seeing,
hearing, eating, walking, etc.
– Note: This definition also includes activities commonly
affected by mental impairments such as sleeping,
concentrating, and thinking
Example: Judy has had major depression for almost
a year. She has been intensely sad and socially
withdrawn (except for going to work), has developed
serious insomnia, and has had severe problems
concentrating.
 Does Judy have a Qualifying Disability?
Source: EEOC Enforcement Guidance
Example: Jane took medication for bipolar disorder for
a few months. Before starting medication, she
experienced increasingly severe and frequent cycles of
depression and mania; at times, she became extremely
withdrawn socially or had difficulty caring for himself. Her
symptoms have abated with medication, but her doctor
says that the duration and course of her bipolar disorder
is indefinite.
 Does Jane have a Qualifying Disability?
Source: EEOC Enforcement Guidance
Example: Travis was distressed by the end of a romantic
relationship. Although he continued his daily routine, he
sometimes became agitated at work. He was most distressed
for about a month during and immediately after the breakup.
He sought counseling and his mood improved within weeks.
His counselor gave him a diagnosis of "adjustment disorder"
and stated that he was not expected to experience any longterm problems associated with this event.
 Does Travis have a Qualifying Disability?
Source: EEOC Enforcement Guidance
• Definition: Having a “record” of an impairment
– Documented history of a qualifying
impairment
• Definition: “Regarded As” having an impairment
– An individual establishes he or she has been
subjected to an discriminatory action because
of an actual or perceived physical or mental
impairment whether or not the impairment
actually limits or is perceived to limit a major
life activity.
A qualified individual with a disability must be provided:
A REASONABLE ACCOMMODATION
unless
Doing so would cause an UNDUE BURDEN
to the employer
• Employee’s Obligations:
– Generally must inform the employer of
need for accommodation
– Does not need to use “magic words” of
“reasonable accommodation”
• Co-Worker’s Obligations:
– May/should report behaviors or performance
issues affecting workplace environment or
creating concern of direct threat
– Should not harass or subject employee to
discriminatory treatment
• Employer’s Obligations:
• Generally, should not act until employee
informs of need for reasonable
accommodation
• Exceptions creating duty to initiate
“interactive process”:
• Becomes aware of disability and need is
observable and/or obvious
• Direct risk to health and safety
“The employer has to meet the employee half-way,
and if it appears that the employee may need an
accommodation but doesn’t know how to ask for it,
the employer should do what it can to help.”
Bultemeyer v. Fort Wayne Community Schools, 100
F.3d 1281 (7th Cir. 1996)
• Employer’s Obligations:
• Confidentiality:
– Do NOT tell other employees that a coworker has
a disability or is receiving a reasonable
accommodation
– EEOC guidance: In response to coworker
questions, explain only that the employer is
acting for “legitimate business reasons” or “in
compliance with federal law”
• Reasonable Accommodations:
– Any change in the work environment or in the way
things are customarily done that enables an individual
with a disability to enjoy equal employment
opportunities
– Should be reasonable and effective
– Examples of Reasonable Accommodations:
• Job restructuring
• Part-time or modified work schedules
• Acquiring or modifying equipment
• Changing tests, training materials, or policies
• Providing qualified readers or interpreters
• Reassignment to a vacant position
• Leave
• Examples of unreasonable accommodations:
– Eliminate a job’s essential function
– Lower production/performance standards
– Provide personal use items or assistive devices; e.g.
hearing aids, wheelchair
– Create new position or train employee for new
position (when training is not ordinarily provided to
other employees)
• Additional considerations
– Do not have to provide the employee’s preferred
accommodation;
– If more than one accommodation is reasonable, the
employer may choose which to provide;
– Need not violate seniority system or collective
bargaining Hours/Leave
– Modifying hours significantly disrupts operation or
requires replacement employee
• Indefinite leave not a reasonable accommodation
• Undue Burden Factors:
– Size with respect to number of employees, number
and type of facilities, and size of budget;
– Type of the employer’s operation, including the
composition and structure of the employer’s
workforce; and
– The nature and cost of the accommodation needed.
Question: A school district rotates its cleaning staff
on a monthly basis. One crew member has a psychiatric
disability, which make it difficult to adjust to alterations
in his daily routine. He asks for a reasonable
accommodation and proposes three options: staying on
one floor permanently, staying on one floor for two
months and then rotating, or allowing a transition
period to adjust to a change in floor assignments.
Is this a reasonable accommodation?
Answer: Yes. These accommodations are reasonable
because they appear to be feasible solutions to this
employee's problems dealing with changes to his
routine. They also appear to be effective because they
would enable him to perform his cleaning duties.
Source: EEOC Enforcement Guidance (altered)
Special Issues: Medical Exams and
Questions
Application and Interview Stage:
NO:
»Ask a job applicant to answer medical
questions or take a medical exam;
»Ask job applicants if they have a
disability (or about the nature of an
obvious disability);
Application and Interview Stage:
YES:
» Ask job applicants whether they can
perform the essential functions of the job,
with or without reasonable
accommodations.
*Note that asking an applicant to perform a drug test is not a “medical
exam” or “medical inquiry” prohibited by the ADA.
After Conditional Job Offer
YES: Condition the job offer on the applicant
answering certain medical questions or successfully
passing a medical exam, but only if:
» Required of all new employees in the same type of job;
and
» Reject only based on results that are job-related and
consistent with business necessity (or where a direct threat
exists).
During Employment
»If the employer needs medical documentation
to support an employee’s request for an
accommodation; or
»If the employer believes that an employee is
not able to perform a job (essential
functions) successfully or safely
During Employment
If the employee’s physician does not provide
sufficient information, an employer can require the
employee to go to a physician of the employer’s
choice and at the employer’s expense.
During employment
Under the ADA, exam conducted by the employer’s
health professional must be “job-related” and
“consistent with business necessity.”
» “Job-related”: Measure one’s ability to perform
the job;
» “Business Necessity” Relate to the essential
functions of the job.
Example: A cafeteria worker does not learn the tasks she is
required to perform to timely prepare food each day. She
often forgets steps or does not have things ready by
mealtime. She is not adequately performing her essential
function of timely preparing food. There is no indication,
however, that her failure to learn the steps is related in any
way to a medical condition.
 Could the employer request a medical examination or ask
about a disability?
Source: EEOC Enforcement Guidance (altered)
Special Issues: Employee misconduct
and discipline
 Federal Law:
 Generally, an employer does not have to excuse
misconduct violating a uniform rule (such as violence,
threats, stealing, destruction of property) due to a
disability,
 However, case law indicates that an employer may still
need to consider whether misconduct could be
remedied through a reasonable accommodation
 Iowa law: not entirely clear
Even in cases of misconduct, the employer should still
ask whether the employee could still perform the
essential functions of their job with an
accommodation?
– Yes: the employer should work to provide the
accommodation.
– No: the employer is likely justified in
disciplining/ terminating the employee.
Example: Mary, a receptionist who has major
depression is late for work because medication sideeffects make her extremely groggy. Her job
responsibilities include answering the phones for the
high school. She routinely arrives up to an hour after
her start time…
…The District disciplines Mary for tardiness,
stating her continued failure to arrive promptly
will result in termination. Mary explains that she
is often late because of a disability and needs to
work on a later schedule.
 What should the District do?
Source: EEOC Enforcement Guidance
Special Issues: Direct Threats
• Under the ADA, employers can “deny
employment benefits” to “individual[s
who] pose a direct threat to the health or
safety of other individuals in the
workplace.”
 Definition: “Direct threat”:
 The employee poses a significant risk of substantial
harm to the health or safety of the individual or
others that cannot be eliminated or reduced by
reasonable accommodation;
 Direct threat: Factors to consider
– The duration of the risk;
– The nature and severity of the potential harm;
– The likelihood that the potential harm will
occur; and
– The imminence of the potential harm.
How do you decide?
 Assessment based on a “reasonable medical
judgment” that relies on (1) the most current
medical knowledge and/or (2) best available
objective evidence.
 Request medical information or a medical exam
Again: Consider whether the employee can still perform the
essential functions of their job with an accommodation?
Example: A school district knows that Tim, one of
its best bus drivers, has bipolar disorder and had a
manic episode last year when he was transporting
a team around-the-clock for a long and stressful
tournament. Tim’s behavior posed a direct threat
(he drove the bus in a reckless manner).
After a short leave of absence, Tim returned to work and
his usual high level of performance. The school district
wants to assign him to out-of-town sports events.
There is no indication that Tim’s condition has changed in
the last year, or that his manic episode was not caused by
the assignment at the tournament.
 Can the employer request a medical exam?
Yes: The District may request a fitness-for-duty
examination because it has a reasonable belief, based
on Tim’s past conduct, that his ability to perform
essential job functions may continue to be impaired by
a medical condition.
The examination must be limited to the effect of his
mental health condition on his ability, with or without
reasonable accommodation, to perform essential job
functions (not entire psychiatric history).
Source: EEOC Enforcement Guidance (altered)
• Role of the Board
– Review and update EEO policies and
procedures regularly;
– Ensure adequate training in antidiscrimination and anti-harassment;
– Remain neutral in possible employee
disciplinary matters.
Questions?