The Invisible Disability: An Employer’s Guide to Mental Health and the ADA

Quick Hits

• The ADA’s broad definition of “disability” expressly encompasses mental health conditions, which may include major depressive disorder, panic disorder, anxiety disorder, post-traumatic stress disorder (PTSD), attention deficit disorder, and autism spectrum disorder, among others.
• Employers have an obligation to provide reasonable accommodation(s) that enable employees with mental health disabilities to perform their essential job functions or enjoy the equal privileges and benefits of employment.
• Employees are not entitled to dictate a preferred accommodation; employers may explore and choose among effective alternatives.

How Mental Health Conditions Qualify Under the ADA

The ADA protects qualified individuals with a “disability,” defined as a “physical or mental impairment that substantially limits one or more major life activities,” a “record of such an impairment,” or “being regarded as having such an impairment.” (Emphasis added.) Through the ADA Amendments Act of 2008 (ADAAA), Congress made it unmistakably clear that this definition must be construed broadly in favor of coverage—a mandate that the U.S. Equal Employment Opportunity Commission (EEOC) and the courts have firmly embraced.

The ADA regulations define “mental impairment” to include “[a]ny mental or psychological disorder such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disability.” The regulations expressly exclude “disorders resulting from current illegal use of drugs,” “sexual behavior disorders,” and certain compulsive behaviors.

As noted above, a mental impairment must substantially limit a major life activity to constitute a disability. The regulations provide a non-exhaustive list of such activities, which, as relevant to mental impairments, include “learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working.” The regulations further provide that mental impairments may “substantially limit [the major life activity of] brain function.”

Conditions need not be permanent or severe to qualify as a disability. Moreover, whether a condition constitutes a disability is determined “without regard to the ameliorative effects of mitigating measures,” such as medication, therapy, or coping strategies. Notably, however, the negative side effects of medication may themselves substantially limit a major life activity and support the finding of a disability. The use or nonuse of mitigating measures may nonetheless be relevant in assessing whether an employee is qualified for a position, poses a direct threat to the safety of himself or herself or others, or requires reasonable accommodation.

The EEOC provided additional guidance on mental disabilities in its 1997 Enforcement Guidance on the ADA and Psychiatric Disabilities. (Although still in effect, the guidance was issued prior to the ADA Amendments Act and contains some information that is no longer applicable; however, other parts continue to offer helpful information.) That guidance offers wide-ranging and non-exhaustive examples of covered conditions such as major depression, bipolar disorder, anxiety disorders (including panic disorder, obsessive-compulsive disorder, and PTSD), schizophrenia, and personality disorders. The guidance clarifies that mental impairments do not include stress or common personality traits, such as poor judgment or a quick temper, standing alone.

Guidance for Employers

Mental Health Awareness Month offers a timely opportunity to review disability-related policies, procedures, and practices, and to remember that situations potentially involving mental impairments/disabilities often call for careful navigation. Below are areas of focus and consideration for employers addressing mental impairments/disabilities in the workplace:

• Refraining from disability-related inquiries. Employers generally should refrain from inquiring about whether an employee has a mental impairment/disability. Under the ADA, medical questions are permissible only when they are job-related and consistent with business necessity. The better practice is to focus on the employee’s conduct or performance concerns and to allow the employee to raise any mental health issues voluntarily.
• Confirming a request for accommodation. If an employee discloses a mental disability, employers may wish to confirm whether the employee is requesting an accommodation and what that requested accommodation is. Any such exchange should be documented.
• Manager training. Employers may wish to train their managers to recognize when an accommodation request is being made, even informally, and to involve human resources immediately. An employee need not use the words “ADA,” “reasonable accommodation,” or “disability.” Simply stating that he or she is having difficulty with some job requirement because of a mental health condition may be sufficient to trigger the reasonable accommodation obligation.
• Fitness-for-duty examinations. There may be circumstances when an employee is clearly unable to perform his or her essential job functions or poses a direct threat because of a suspected mental health issue. In those situations, it may be appropriate to send an employee for a fitness-for-duty examination.
• The interactive process. When an employee seeks an accommodation for a mental disability, it may be wise for employers to engage in the interactive process. Through this dialogue, the employer may obtain information from the employee’s treating healthcare provider about the employee’s limitations, the impact on any major life activities, whether mitigating measures are available and being used, and the availability and reasonableness of possible accommodations.
• Alternative accommodations. An employee’s requested accommodation may not be the only, or most appropriate, option. There may be alternative accommodations that would enable the employee to perform his or her essential job functions or to enjoy the equal privileges and benefits of employment. While many employees currently request remote work as an accommodation, the EEOC’s 1997 guidance and its more recent Telework Guidance make clear that other potentially effective accommodations could include things such as, but not limited to, assistive technology, written instructions, modified equipment, environmental modifications (addressing sound, smell, light, etc.), job restructuring, or modified schedules. The government website, AskJAN.org, has additional accommodations that employers may wish to consider.
• Checking on the employee and the accommodation. It may be wise to follow up with the employee to see how the accommodation is working. Reasonable accommodations are not set in stone—if they are not working or if circumstances change, the employer may engage in further discussions with the employee to identify other accommodations.
• Considering the “accommodation of last resort.” If no accommodation would enable the employee to perform his or her essential job functions, the employer may wish to determine whether there are any other available positions for which the employee is qualified, with or without reasonable accommodation. The EEOC treats reassignment as part of the reasonable accommodation obligation (though federal courts are divided on the extent of that obligation), to be considered before moving to termination of employment.
• Maintaining confidentiality. All medical information received must be kept confidential and separate from the employee’s personnel file. In addition, an employer should not share details about an employee’s mental disability or the reason for an accommodation with coworkers. If questions arise, one effective response is to state that the matter is a confidential personnel issue and that the company complies with all applicable laws.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the Employment Law and Leaves of Absence blogs as additional information becomes available.

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