Introduction to Mental Impairments and Disabilities and the ADA
According to a 2011 report issued by the Centers for Disease Control and Prevention, one out of every four Americans reported that they suffered from some type of mental illness or disability. Even if a mental impairment or disability does not result in the manifestation of any apparent physical limitations, mental impairments and injuries can interfere with the person’s ability to perform even simple or ordinary activities of daily living. A person may not be able to interact with others in a public for long periods of time; another person may be able to interact with the public in an appropriate manner but may need frequent reminders about how to perform job tasks. For employers, just as the Americans with Disabilities Act (ADA) and its recent amendments require them to provide reasonable accommodations to employees and potential employees with physical impairments, so too must employers provide reasonable accommodations to individuals with mental impairments, disabilities, and/or conditions. In addition, the ADA protects these employees against discrimination.
Employers Should Not Ask Employees if They Have Mental Impairments
An employer may be tempted to ask employees or potential employees during the hiring process whether they have a mental impairment or disability. Regardless of what observations or “hunches” might lead an employer or supervisor to suspect an employee or potential employee has an impairment or disability, employers should instead focus on the employee’s ability to perform the essential job functions of the position with or without reasonable accommodations. Asking an employee or potential employee if they have a mental impairment that impacts their ability to do the relevant job tasks may be taken as discrimination – especially when the employee is terminated and/or not offered the position.
When an employer has reason to believe an employee may have difficulty in completing the essential functions of a job position without reasonable accommodations, the employer should open a dialogue with the employee about what reasonable accommodations, if any, may assist the employee in performing the essential job tasks. The Equal Employment Opportunity Commission (EEOC) has indicated that reasonable accommodations might include:
- More flexible scheduling to enable the employee to work less than a standard shift;
- Giving the employee more breaks throughout the day;
- Providing additional coaching or supervision to the employee;
- Rearranging the physical layout of the facility to provide the employee with a “safe space” or with a personal space.
Reasonable accommodations are not required unless the employer knows or has reason to know of the existence of the mental disability or impairment. If the employee is able to perform all of the essential job functions without any assistance or accommodation, the employer may not be required to provide any additional accommodation. However, even where an impairment is being treated with medication(s) and/or counseling and therapy, employers must still provide additional, reasonable accommodations that the employee might require. It would be helpful for employers to speak with the treating medical or psychiatric professionals about how best to accommodate any limitations the employee may face (assuming, of course, that the employee allows the employer to contact his or her treatment team). For more information see the ADA website.
Under the ADA, employees and potential employees with mental disabilities and impairments are entitled to the same protections as those with physical disabilities. To prevent potential discrimination lawsuits and claims, employers should remain focused on evaluating whether an employee or potential employee can perform the essential job tasks of the position. If the person cannot do so, the employer should explore what reasonable accommodations might be available to enable the employee or potential employee to do so.