# Presentation: 382754

## INDIVIDUALS WITH PSYCHIATRIC DISABILITIES							

- Chris Kuczynski
- (christopher.kuczynski@eeoc.gov)
- Assistant Legal Counsel
- ADA Policy Division

## OBJECTIVES		

- Identify psychiatric disabilities
- Learn how to determine when someone with a psychiatric disability is “qualified” for a job
- Learn about some accommodations for persons with psychiatric disabilities
- Identify safety issues and properly apply the concept of “direct threat”

## DEFINITION OF DISABILITY

- An **impairment **that **substantially limits** one or more **major life activities**
- A **record** of a substantially limiting impairment
- Being **regarded as** having a substantially limiting impairment

## TYPES OF PSYCHIATRIC IMPAIRMENTS

- Anxiety disorder
- Panic disorder
- Bi-polar disorder
- Depression
- Post-traumatic stress disorder
- Schizophrenia
- Adjustment disorder

## IMPAIRMENTS NOT COVERED

- Pyromania
- Kleptomania
- Compulsive gambling
- Current illegal use of drugs
- Certain sexual disorders

## PERSONALITY TRAITS NOT COVERED IMPAIRMENTS

- Poor judgment
- Chronic lateness
- Irritability
- Inability to get along with supervisor or co-workers

## MAJOR LIFE ACTIVITIES

- Thinking
- Concentrating
- Interacting with others
- Sleeping
- Caring for self
- Working

## SUBSTANTIALLY LIMITED

- Unable to perform a major life activity; **or**
- significantly restricted in the condition, manner or duration under which a major life activity can be performed as compared to the average person in the general population

## SUBSTANTIALLY LIMITED

- Duration – more than several months
- Severity
- Permanent or long-term impact of or resulting from the impairment

## “RECORD OF”

- Substantially limiting in the past
- Includes individuals mischaracterized as having a disability
- May be relevant in cases where someone is using a mitigating measure to control a condition

## “REGARDED AS” DISABLED

- Impairment is not substantially limited, but individual is treated as such
- Impairment is substantially limited as the result of the attitudes of others
- No impairment, but employer treats an individual as if he or she has a substantially limiting impairment

## QUALIFIED

- Meets the basic skill, education, training, and other job-related requirements; and
- Can perform the **essential** (or fundamental) functions of a position with or without reasonable accommodation

## ESSENTIAL FUNCTIONS

- Job exists to perform the function
- Limited number of employees among whom function can be distributed
- Job is highly specialized

## ESSENTIAL FUNCTIONS

- Evidence relevant in determining whether a function is essential includes:
- Employer’s judgment
- Terms of a written position description
- Terms of a collective bargaining agreement
- Experience of current or past employees Amount of time spent performing the function
- Consequences of not performing the function

## What is Reasonable Accommodation?

- A change in the workplace or in the way things are customarily done that provides an individual with a disability with equal employment opportunities
- Accommodations are available for the application process, to enable an individual with a disability to perform essential job functions, and to provide equal **benefits and privileges** of employment.

## Requests for Reasonable Accommodation

- Generally, an individual with a disability must request reasonable accommodation.
- A request for reasonable accommodation is a request for some **change in the workplace or in the way things are done** that is needed because of a **medical condition.**

## Requests for Reasonable Accommodation

- Requests do not have to be in writing.
- Requests do not have to use “magic words.”
- Requests may come from a third party (e.g., an employee’s family member or doctor).

## Timing of Requests

- Requests for reasonable accommodation may be made at any time during the application process or during employment
- An employee does not lose the right to request an accommodation because he did not do so during the application stage
- Employees may make more than one request for reasonable accommodation (e.g., if the nature of a condition or the job changes)

## Interactive Process

- Once a request has been made, an employer should engage in an interactive process with the individual asking for the accommodation.
- The process may involve determining whether the requester has a disability, what accommodations are possible, or both.

## Documenting PSYCHIATRIC Disabilities

- An employer may obtain **reasonable documentation** that an employee has a mental disability and needs an accommodation.
- Employer may require that documentation of the existence of an impairment come from a health care professional.
- Health care professionals other than psychiatrists may provide documentation of the existence of an impairment.

## Documenting psychiatric Disabilities

- 	Documentation must be **sufficient**, but the amount of documentation required must be **reasonable**.
**Sufficient:**  Means that the documentation establishes the existence of an impairment and the degree to which the impairment limits major life activities.
**Reasonable: ** means that the employer is entitled to no more information than is necessary to determine that the employee has a disability and needs accommodation

## Choosing an Accommodation	

- Primary consideration should be given to the employee’s choice
- Employer may ultimately choose from among accommodations, as long as the one provided is effective

## Types of Accommodations

- Physical modifications
- Modified work schedules
- Job restructuring
- Changing supervisory methods
- Job coach
- telework
- Leave
- Reassignment to a vacant position

## Actions Not Required

- Lowering production or performance standards
- Excusing violations of conduct rules that are job-related and consistent with business necessity
- Removing an essential function
- Monitoring an employee’s use of medication
- Actions that would result in undue hardship (i.e. significant difficulty or expense)

## Confidentiality

- Information about an employee’s reasonable accommodation must be kept confidential
**Exception:**  Information may be disclosed to supervisors and managers for necessary work restrictions or reasonable accommodations
**Exception:**  Information may be disclosed to individuals involved in making decisions about reasonable accommodations
**Exceptions:**  Where necessary for emergency treatment; to officials investigating compliance with Rehabilitation Act; for workers’ compensation and insurance purposes

## Confidentiality

- Many agencies have someone other than employee’s immediate supervisor review documentation supporting accommodation request
- Where this is done, supervisor will receive only information necessary to provide accommodation
- Agencies should be careful not to have individuals review reasonable accommodation requests who may also be involved in any EEO complaint related to the request

## Reasonable Accommodation Policies

- Executive Order 13164 requires all Federal agencies to have written reasonable accommodation procedures
- EEOC has issued guidance on EO 13164:  _[http://www.eeoc.gov/policy/docs/accommodation_procedures.html](http://www.eeoc.gov/policy/docs/accommodation_procedures.html)__ _

## Going Beyond Legal Obligations

- Many agencies may take actions that are not required as reasonable accommodations
- Agency will not be deemed to have regarded an individual as disabled just because it exceeded its legal obligations
- An agency may inform an employee that it is taking an action beyond what the Rehabilitation Act requires

## Going Beyond Legal Obligations

- Examples of situations in which any agency may exceed its obligations include:
- Providing an assistant to help an employee perform activities of a personal nature (e.g., assistance with eating)
- Providing a temporary measure while considering a request for reasonable accommodation
- Accommodating a temporary, non-chronic condition of short duration or a long-term condition that is not substantially limiting

## What if an Employee Will Not Accept Accommodation?

- Employer may not require someone to accept a reasonable accommodation.
- Someone who does not accept an accommodation and, as a result, cannot do the job or would pose a “direct threat” will not be considered qualified.

## SAFETY ISSUES

- Individual with a disability may only be excluded for safety reasons if he or she poses a **“direct threat”**
- Direct threat means a **significant risk of substantial harm** to self or others that cannot be reduced or eliminated through **reasonable accommodation**
- Determination relies on best available **objective evidence**
- An **individualized assessment** is required

## DIRECT THREAT FACTORS

**Nature of the risk **and severity of the potential harm
**Duration **of the risk
**Likelihood **that the potential harm will occur
**Imminence **of the risk
- Availability of **reasonable accommodation**

## ASKING QUESTIONS ABOUT DISABILITY

- Before a job offer is made, questions about disability and medical examinations are prohibited
**Exception:**  All applicants may be asked if they will need accommodation for the application process
**Exception:**  Specific applicants with obvious or known disabilities may be asked if they will need reasonable accommodation for the job if the employer has a reasonable belief that accommodation will be needed

## ASKING QUESTIONS ABOUT DISABILITY

- After a job offer is made, employers may ask questions about disability and may require medical examinations if they ask such questions and/or require examinations of **all entering employees in the same job category**

## ASKING QUESTIONS ABOUT DISABILITY

- During employment, questions about disability and/or medical examinations may be permitted if and employer has a **reasonable belief** based on objective evidence that a particular employee:
- (1)  will be unable to perform **essential functions** due to a **medical condition**; or
- (2)  will pose a **direct threat** due to a **medical condition**

## RESOURCES

- Eeoc WEBSITE:  _[WWW.EEOC.GOV](http://www.eeoc.gov/)_
- Job Accommodation Network (JAN):
-   _[www.jan.wvu.edu](http://www.jan.wvu.edu/)_
- My contact information:
- Chris Kuczynski
- Office of Legal Counsel, EEOC
- (202) 663-4665