EEOC Guidance for Depression, Anxiety Disorders & Manic Depression

The First Surgeon General’s Report on Mental Health issued in December, 1999, states that depression is the major cause of worldwide disability and that manic depression ranks among the top 10 causes. The report also found that nearly 16% of the American population suffers from anxiety disorders. Since the inception of Title I of the Americans with Disabilities Act (ADA) in 1992, employers have contributed over $25 million in awards for charges involving depression, manic depression and anxiety disorders. Merit factor resolutions (resolutions of meritorious allegations with favorable outcomes to charging parties) between 1997 and 1999 nearly tripled for depression and almost doubled for charges involving anxiety disorder and manic depression (For specific data, you may refer to newsletter charts). These impairments rank second only to orthopedic and back injuries out of a total of 44 impairments covered by the ADA.

In 1997, in an attempt to dispel the penumbra surrounding emotional or mental illness, the Equal Employment Opportunity Commission (EEOC) issued Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities. While the EEOC’s enforcement guidance does not constitute actual law, the courts refer to it to determine the applicability of ADA complaints. The enforcement guidance lists the applicable psychological disorders as "major depression, bipolar disorder (manic depression), anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia, and personality disorders."

The EEOC maintains that a qualified psychiatric disorder must "substantially limit major life activities," and they state that "irritability, chronic lateness, and poor judgement . . . may be linked to mental impairments." These traits describe many workplace complaints against employees who may, with the help of the EEOC’s guidelines, link willful performance issues to a psychological impairment. In addition, work is only one of the major life activities that may be significantly affected by the disorder. For example, substantial limitations on "learning, thinking, concentrating, interacting with others, [and] sleeping" may qualify an individual as emotionally or mentally impaired even if their work life is not affected by the disorder. The EEOC further broadens the palette by stating that "expert testimony about substantial limitation is not necessarily required." Credible testimony from the individual with a disability and his/her family members, friends, or coworkers may suffice. The potential exists that you may be asked to provide reasonable accommodations for behavior that may stem from any number of personal and motivational factors, one of which may be a psychological disorder.

It is extremely difficult to identify individuals who may require reasonable accommodation prior to the job offer. The ADA prohibits an employer from asking questions about emotional or mental disabilities both on the job application and during the interview process. However, once you offer employment, you may ask questions regarding psychiatric disabilities if all employees for the same position are asked the same questions. As a standard procedure after your offer of employment, you may also administer a medical examination that includes a psychiatric test.

An employee is not required to reveal a psychological disorder at any time during their employment. If an employee reveals a psychiatric disability and/or requests reasonable accommodation, you may initiate medical/psychiatric inquiries if you have a "reasonable belief ...that an employee’s ability to perform essential job functions will be impaired" by the disorder or if the "employee will pose a direct threat" due to the disorder. The EEOC also permits inquiries or medical/psychiatric exams when the need for reasonable accommodation may not be obvious. However, the guidelines stipulate that only "reasonable documentation" is necessary to determine the scope of a company’s ADA obligations. If you are worried about an employee’s condition affecting guest services, and you request all the employee’s treatment records from their psychiatrist so that you can determine the true nature of their illness, you have unwittingly violated EEOC guidelines. You may, however, ask the employee to sign a limited release that allows you to ask specific questions of their psychiatrist or health care professional about the employee’s ability to effectively interact with guests.

You can avoid violating ADA guidelines if you recognize what constitutes a request for reasonable accommodation, especially regarding disabilities of a psychological nature which may lack observable symptoms. A request for reasonable accommodation may be verbal and even casually stated. For instance, if an employee tells you they have trouble remembering all the details of what they are asked to do and requests instructions in writing, they may have a problem concentrating due to the effects of medication or a psychiatric disability. Ask questions. Don’t assume that the employee is lazy or has an overextended sense of privilege. If the employee in question tells you they have an emotional or mental impairment, you must provide reasonable accommodation, even if it entails having their supervisor write down their instructions. You are free to request reasonable documentation of the employee’s disability before providing reasonable accommodation as the employee’s disability is not clearly observable.

If an employee requests adjusted work hours because he can only sleep after 5:00 a.m., don’t assume the employee is lazy and likes to sleep late. He may suffer from a psychological disorder that substantially limits his ability to sleep, and his work performance does not have to suffer in order for him to request reasonable accommodation. According to the EEOC, the employee does not need to be under a doctor’s care. Family members may offer "credible testimony" about his chronic inability to sleep in order to prove that a major life activity is substantially limited. In this scenario, you may send the individual either to his own doctor or a doctor of your choice to substantiate the disability. If the employee has medical records regarding his condition, you may request reasonable documentation from the treating health professional.

Difficulty concentrating is one of the traits of an individual suffering from an anxiety disorder. If an employee in an open area requests a divider or barrier to screen out noise and activity because they can’t concentrate, they may not merely be requesting special treatment because they think they deserve it. This is a request for reasonable accommodation, and you should ask questions regarding the nature of the employee’s complaint and request reasonable documentation. If providing partitions for other employees becomes an issue, be cautious about revealing why a certain area has the partition and another does not. You may not reveal that you are providing reasonable accommodation for an employee, but you may state that you are "acting for legitimate business reasons or in compliance with federal law." Many employers have found it useful to modify other areas of the workplace, such as providing all open work areas with partitions, in order to circumvent complications.

Even if an employee’s behavior can be attributed to a psychological disability, they are bound to conform to workplace standards and are subject to uniform disciplinary procedures. The EEOC describes how to manage employees whose conduct violates workplace standards due to an emotional or mental impairment. The standards of conduct that you apply must be job-related for the position in question and consistent with business necessity. For example, an employee working in the pantry has become increasingly withdrawn and rude when addressing coworkers. His hair is unkempt, and his uniform needs laundering. However, he continues to perform his job duties at a satisfactory level. The company handbook states that all workers are responsible for cleaning their uniforms and are expected to maintain a neat appearance. The handbook also stipulates that coworkers must be courteous to one another. When the pantry worker is disciplined for violating workplace standards, he attributes his behavior to clinical depression and provides reasonable documentation to his employer. In order to provide reasonable accommodation to the pantry worker, the hotel needs to consider whether the dress code and mandatory courtesy are job-related and a business necessity for the position in question. As a pantry worker, he has limited coworker contact and is not exposed to hotel guests; therefore, the hotel should consider the necessity of applying those particular handbook standards to this individual.

If, for instance, a bellman suffering from an anxiety disorder threatens the front office manager with physical assault for cutting back his hours, he can be terminated according to the company’s policy of immediate termination of any employee who threatens a supervisor. Even if the bellman reveals his disability after being terminated and requests extended leave to receive treatment, the hotel is not obligated to provide reasonable accommodation or to reinstate the bellman. In this case, mandatory non-threatening behavior toward a supervisor extends to all hotel workers, regardless of their job position. The hotel must also provide a workplace free from threats of physical harm as a business necessity.

In the absence of applicable workplace standards, the individual’s mental health professional should determine whether an individual with a psychiatric impairment poses a direct threat to your business. Suppose a waitress at your property has been hospitalized twice in the last month for attempted suicide. She wishes to return to work, but you feel she may be unreliable and unstable and may even do harm to herself while on your property. You request reasonable documentation and become alarmed because it reveals the employee in question is deeply troubled and has been diagnosed with manic depression. The treating physician and psychiatrist reveal that the employee is now under medication for her condition and that she is fit to return to work. In order to justify terminating this employee, you must identify specific behavior that poses a direct threat to your establishment. According to EEOC guidelines, an individual who has attempted suicide does not necessarily pose a direct threat. In this case, the fact that the treating health professionals recommend re-employment, obligates you to employ the individual in question. If the waitress is observed violating workplace standards that apply to her position, she may be disciplined or terminated according to uniform disciplinary procedure.

While your obligations as an employer under the ADA for psychiatric disability may entail altering workplace policies, financial investment, and various other accommodations, individuals with psychological disorders who maintain employment have a greater chance of recovery than those who do not. A study conducted by the Dartmouth Psychiatric Research Center concludes that "with the proper programs and supports, most seriously mentally ill can return to competitive employment without disrupting the workplace or requiring major accommodations." The study further revealed that many employers are unaware "that they have a lot of people working for them who have psychiatric disabilities. And they have unrealistic ideas about what the accommodations issue might mean." Awareness of your rights as an employer can protect you and limit workplace risks.

In 1999, the Supreme Court modified the definition of a disability by taking "into consideration whether the person is substantially limited in performing a major life activity when using a mitigating measure." For instance, if the use of medication as a mitigating measure permits an individual to perform major life activities with little or no difficulty, then that individual is not disabled and does not fall under the protection of the ADA (As long as the employer does not "perceive" the individual as being disabled). The symptoms of many psychological impairments that prevent the performance of a major life activity can be alleviated or improved through the use of medication, such as Prozac. Also, many psychological disabilities can be helped through psychotherapy, often administered in combination with pharmaceuticals. The Supreme Court ruling has the potential to reduce the number of ADA charges in the areas of depression, anxiety disorders, and manic depression.

An important thing to consider in today’s economy is the shortage of qualified workers. The Dartmouth study shows that interventions on behalf of individuals suffering from emotional and mental illness raised employment rates from 9% to 25%. You are not required to provide reasonable accommodation for unobserved psychiatric impairments without some form of proof, testimony or documentation of the disability, nor will you be forced to retain an individual who may significantly detract from necessary business objectives or who may pose a direct threat to your business. If incidents of psychological disability occur at your property, the important thing to remember is to assert your rights as an employer. Contact your HR department or Shea Stokes & Carter immediately if an employee makes any requests that make you feel uncomfortable or if an employee exhibits anomalous behavior that you believe may indicate a psychological impairment that could negatively impact your business. Call us if you have any questions about the ADA or the EEOC guidelines. If you would like to know more about EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, you can obtain a copy on the EEOC website at www.eeoc.gov/docs/psych.html. You may also obtain a copy of the First Surgeon General’s Report on Mental Health at www.surgeongeneral.gov/library/mentalhealth.html.