*The U.S. Equal Employment Opportunity Commission*

----

# EEOC Enforcement Guidance on the Americans with DisabilitiesAct and Psychiatric Disabilities

## Notice Concerning The Americans With Disabilities Act Amendments Act Of 2008

list of specific changes to the ADA

```

EEOC NOTICE 
Number 915.002 
Date 3-25-97

1.  SUBJECT: EEOC Enforcement Guidance on the Americans with Disabilities
Act and Psychiatric Disabilities

2.  PURPOSE: This enforcement guidance sets forth the Commission's
position on the application of Title I of the Americans with Disabilities
Act of 1990 to individuals with psychiatric disabilities. 

3.  EFFECTIVE DATE: Upon receipt. 

4.  EXPIRATION DATE: As an exception to EEOC Order 205.001, Appendix B,
Attachment 4, � a(5), this Notice will remain in effect until rescinded or
superseded. 

5.  ORIGINATOR: ADA Division, Office of Legal Counsel. 

6.  INSTRUCTIONS: File after Section 902 of Volume II of the Compliance
Manual. 

     3-25-97                             /S/
__________________              _____________________________________
Date                            Gilbert F. Casellas
                                Chairman

                          TABLE OF CONTENTS
              (page numbers removed in ASCII version)

INTRODUCTION

WHAT IS A PSYCHIATRIC DISABILITY UNDER THE ADA

DISCLOSURE OF DISABILITY

REQUESTING REASONABLE ACCOMMODATION

SELECTED TYPES OF REASONABLE ACCOMMODATION

CONDUCT

DIRECT THREAT

PROFESSIONAL LICENSING

INDEX (removed in ASCII version)

                 ---------------------------------
         
Enforcement Guidance: The Americans With Disabilities Act and Psychiatric
Disabilities

INTRODUCTION

The workforce includes many individuals with psychiatric disabilities who
face employment discrimination because their disabilities are stigmatized
or misunderstood.  Congress intended Title I of the Americans with
Disabilities Act (ADA)1 to combat such employment discrimination as well
as the myths, fears, and stereotypes upon which it is based.2

The Equal Employment Opportunity Commission ("EEOC" or "Commission")
receives a large number of charges under the ADA alleging employment
discrimination based on psychiatric disability.3 These charges raise a
wide array of legal issues including, for example, whether an individual
has a psychiatric disability as defined by the ADA and whether an employer
may ask about an individual's psychiatric disability.  People with
psychiatric disabilities and employers also have posed numerous questions
to the EEOC about this topic. 

This guidance is designed to:

       facilitate the full enforcement of the ADA with respect to
individuals alleging employment discrimination based on psychiatric
disability; 

       respond to questions and concerns expressed by individuals with
psychiatric disabilities regarding the ADA; and

       answer questions posed by employers about how principles of ADA
analysis apply in the context of psychiatric disabilities.4

WHAT IS A PSYCHIATRIC DISABILITY UNDER THE ADA?

Under the ADA, the term "disability" means:  "(a) A physical or mental
impairment that substantially limits one or more of the major life
activities of [an] individual; (b) a record of such an impairment; or (c)
being regarded as having such an impairment."5

This guidance focuses on the first prong of the ADA's definition of
"disability" because of the great number of questions about how it is
applied in the context of psychiatric conditions. 

Impairment

1.    What is a "mental impairment" under the ADA?

The ADA rule defines "mental impairment" to include "[a]ny mental or
psychological disorder, such as . . . emotional or mental illness."6
Examples of "emotional or mental illness[es]" include major depression,
bipolar disorder, anxiety disorders (which include panic disorder,
obsessive compulsive disorder, and post-traumatic stress disorder),
schizophrenia, and personality disorders.  The current edition of the
American Psychiatric Association's Diagnostic and Statistical Manual of
Mental Disorders (now the fourth edition, DSM-IV) is relevant for
identifying these disorders.  The DSM-IV has been recognized as an
important reference by courts7 and is widely used by American mental
health professionals for diagnostic and insurance reimbursement purposes. 
    
Not all conditions listed in the DSM-IV, however, are disabilities, or
even impairments, for purposes of the ADA.  For example, the DSM-IV lists
several conditions that Congress expressly excluded from the ADA's
definition of "disability."8 While DSM-IV covers conditions involving drug
abuse, the ADA provides that the term "individual with a disability" does
not include an individual who is currently engaging in the illegal use of
drugs, when the covered entity acts on the basis of that use.9 The DSM-IV
also includes conditions that are not mental disorders but for which
people may seek treatment (for example, problems with a spouse or
child).10 Because these conditions are not disorders, they are not
impairments under the ADA.11

Even if a condition is an impairment, it is not automatically a
"disability."  To rise to the level of a "disability," an impairment must
"substantially limit" one or more major life activities of the
individual.12

2.    Are traits or behaviors in themselves mental impairments?   

No. Traits or behaviors are not, in themselves, mental impairments.  For
example, stress, in itself, is not automatically a mental impairment. 
Stress, however, may be shown to be related to a mental or physical
impairment.  Similarly, traits like irritability, chronic lateness, and
poor judgment are not, in themselves, mental impairments, although they
may be linked to mental impairments.13

Major Life Activities

An impairment must substantially limit one or more major life activities
to rise to the level of a "disability" under the ADA.14

3.    What major life activities are limited by mental impairments?

The major life activities limited by mental impairments differ from person
to person.  There is no exhaustive list of major life activities.  For
some people, mental impairments restrict major life activities such as
learning, thinking, concentrating, interacting with others,15 caring for
oneself, speaking, performing manual tasks, or working.  Sleeping is also
a major life activity that may be limited by mental impairments.16

4.  To establish a psychiatric disability, must an individual always show
that s/he is substantially limited in working? 

      No.  The first question is whether an individual is substantially
limited in a major life activity other than working (e.g., sleeping,
concentrating, caring for oneself).  Working should be analyzed only if no
other major life activity is substantially limited by an impairment.17

Substantial Limitation  

Under the ADA, an impairment rises to the level of a disability if it
substantially limits a major life activity.18 "Substantial limitation" is
evaluated in terms of the severity of the limitation and the length of
time it restricts a major life activity.19The determination that a
particular individual has a substantially limiting impairment should be
based on information about how the impairment affects that individual and
not on generalizations about the condition.  Relevant evidence for EEOC
investigators includes descriptions of an individual's typical level of
functioning at home, at work, and in other settings, as well as evidence
showing that the individual's functional limitations are linked to his/her
impairment.  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. 

5.  When is an impairment sufficiently severe to substantially limit a
major life activity? 

An impairment is sufficiently severe to substantially limit a major life
activity if it prevents an individual from performing a major life
activity or significantly restricts the condition, manner, or duration
under which an individual can perform a major life activity, as compared
to the average person in the general population.20 An impairment does not
significantly restrict major life activities if it results in only mild
limitations. 

6.  Should the corrective effects of medications be considered when deciding 
if an impairment is so severe that it substantially limits a major life 
activity? 

No.  The ADA legislative history unequivocally states that the extent to
which an impairment limits performance of a major life activity is
assessed without regard to mitigating measures, including medications.21
Thus, an individual who is taking medication for a mental impairment has
an ADA disability if there is evidence that the mental impairment, when
left untreated, substantially limits a major life activity.22 Relevant
evidence for EEOC investigators includes, for example, a description of
how an individual's condition changed when s/he went off medication23 or
needed to have dosages adjusted, or a description of his/her condition
before starting medication.24

7.  How long does a mental impairment have to last to be substantially
limiting? 

An impairment is substantially limiting if it lasts for more than several
months and significantly restricts the performance of one or more major
life activities during that time.  It is not substantially limiting if it
lasts for only a brief time or does not significantly restrict an
individual's ability to perform a major life activity.25 Whether the
impairment is substantially limiting is assessed without regard to
mitigating measures such as medication. 

            Example A:  An employee has had major depression for almost a
year.  He has been intensely sad and socially withdrawn (except for going
to work), has developed serious insomnia, and has had severe problems
concentrating.  This employee has an impairment (major depression) that
significantly restricts his ability to interact with others, sleep, and
concentrate.  The effects of this impairment are severe and have lasted
long enough to be substantially limiting. 

In addition, some conditions may be long-term, or potentially long-term,
in that their duration is indefinite and unknowable or is expected to be
at least several months.  Such conditions, if severe, may constitute
disabilities.26

            Example B:  An employee has taken medication for bipolar
disorder for a few months.  For some time before starting medication, he
experienced increasingly severe and frequent cycles of depression and
mania; at times, he became extremely withdrawn socially or had difficulty
caring for himself.  His symptoms have abated with medication, but his
doctor says that the duration and course of his bipolar disorder is
indefinite, although it is potentially long-term.  This employee's
impairment (bipolar disorder) significantly restricts his major life
activities of interacting with others and caring for himself, when
considered without medication.  The effects of his impairment are severe,
and their duration is indefinite and potentially long-term. 

However, conditions that are temporary and have no permanent or long-term
effects on an individual's major life activities are not substantially
limiting. 

            Example C:  An employee 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 long-term problems associated with this event.  While he has an
impairment (adjustment disorder), his impairment was short-term, did not
significantly restrict major life activities during that time, and was not
expected to have permanent or long-term effects.  This employee does not
have a disability for purposes of the ADA. 

8.    Can chronic, episodic disorders be substantially limiting?

Yes.  Chronic, episodic conditions may constitute substantially limiting
impairments if they are substantially limiting when active or have a high
likelihood of recurrence in substantially limiting forms.  For some
individuals, psychiatric impairments such as bipolar disorder, major
depression, and schizophrenia may remit and intensify, sometimes
repeatedly, over the course of several months or several years.27

9.  When does an impairment substantially limit an individual's ability to
interact with others? 

An impairment substantially limits an individual's ability to interact
with others if, due to the impairment, s/he is significantly restricted as
compared to the average person in the general population.  Some
unfriendliness with coworkers or a supervisor would not, standing alone,
be sufficient to establish a substantial limitation in interacting with
others.  An individual would be substantially limited, however, if his/
her relations with others were characterized on a regular basis by severe
problems, for example, consistently high levels of hostility, social
withdrawal, or failure to communicate when necessary. 

These limitations must be long-term or potentially long-term, as opposed
to temporary, to justify a finding of ADA disability. 

            Example:  An individual diagnosed with schizophrenia now works
successfully as a computer programmer for a large company.  Before finding
an effective medication, however, he stayed in his room at home for
several months, usually refusing to talk to family and close friends. 
After finding an effective medication, he was able to return to school,
graduate, and start his career.  This individual has a mental impairment,
schizophrenia, which substantially limits his ability to interact with
others when evaluated without medication. Accordingly, he is an individual
with a disability as defined by the ADA. 

10.  When does an impairment substantially limit an individual's ability
to concentrate? 

An impairment substantially limits an individual's ability to concentrate
if, due to the impairment, s/he is significantly restricted as compared to
the average person in the general population.28 For example, an individual
would be substantially limited if s/he was easily and frequently
distracted, meaning that his/her attention was frequently drawn to
irrelevant sights or sounds or to intrusive thoughts; or if s/he
experienced his/her "mind going blank" on a frequent basis. 

Such limitations must be long-term or potentially long-term, as opposed to
temporary, to justify a finding of ADA disability.29

            Example A:  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. This
individual has a disability because, as a result of an anxiety disorder,
his ability to concentrate is significantly restricted as compared to the
average person in the general population. 

            Example B:  An employee 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.  Many people in the general population have difficulty
concentrating when they are tired or during long meetings. 

11.  When does an impairment substantially limit an individual's ability
to sleep? 

An impairment substantially limits an individual's ability to sleep if,
due to the impairment, his/her sleep is significantly restricted as
compared to the average person in the general population.  These
limitations must be long-term or potentially long-term as opposed to
temporary to justify a finding of ADA disability. 

For example, an individual who sleeps only a negligible amount without
medication for many months, due to post-traumatic stress disorder, would
be significantly restricted as compared to the average person in the
general population and therefore would be substantially limited in
sleeping.30 Similarly, an individual who for several months typically
slept about two to three hours per night without medication, due to
depression, also would be substantially limited in sleeping. 

By contrast, an individual would not be substantially limited in sleeping
if s/he had some trouble getting to sleep or sometimes slept fitfully
because of a mental impairment.  Although this individual may be slightly
restricted in sleeping, s/he is not significantly restricted as compared
to the average person in the general population. 

12.  When does an impairment substantially limit an individual's ability
to care for him/herself? 

An impairment substantially limits an individual's ability to care for
him/herself if, due to the impairment, an individual is significantly
restricted as compared to the average person in the general population in
performing basic activities such as getting up in the morning, bathing,
dressing, and preparing or obtaining food.  These limitations must be
long-term or potentially long-term as opposed to temporary to justify a
finding of ADA disability. 

Some psychiatric impairments, for example major depression, may result in
an individual sleeping too much.  In such cases, an individual may be
substantially limited if, as a result of the impairment, s/he sleeps so
much that s/he does not effectively care for him/herself.  Alternatively,
the individual may be substantially limited in working. 

DISCLOSURE OF DISABILITY

Individuals with psychiatric disabilities may have questions about whether
and when they must disclose their disability to their employer under the
ADA.  They may have concerns about the potential negative consequences of
disclosing a psychiatric disability in the workplace, and about the
confidentiality of information that they do disclose. 

13.  May an employer ask questions on a job application about history of
treatment of mental illness, hospitalization, or the existence of mental
or emotional illness or psychiatric disability? 

No.  An employer may not ask questions that are likely to elicit
information about a disability before making an offer of employment.31
Questions on a job application about psychiatric disability or mental or
emotional illness or about treatment are likely to elicit information
about a psychiatric disability and therefore are prohibited before an
offer of employment is made. 

14.  When may an employer lawfully ask an individual about a psychiatric
disability under the ADA? 

An employer may ask for disability-related information, including
information about psychiatric disability, only in the following limited
circumstances: 

         Application Stage.  Employers are prohibited from asking
disability-related questions before making an offer of employment.  An
exception, however, is if an applicant asks for reasonable accommodation
for the hiring process.  If the need for this accommodation is not
obvious, an employer may ask an applicant for reasonable documentation
about his/her disability.  The employer may require the applicant to
provide documentation from an appropriate professional concerning his/her
disability and functional limitations.32 A variety of health professionals
may provide such documentation regarding psychiatric disabilities
including primary health care professionals,33 psychiatrists,
psychologists, psychiatric nurses, and licensed mental health
professionals such as licensed clinical social workers and licensed
professional counselors.34

An employer should make clear to the applicant why it is requesting such
information, i.e., to verify the existence of a disability and the need
for an accommodation.  Furthermore, the employer may request only
information necessary to accomplish these limited purposes. 
    
            Example A:  An applicant for a secretarial job asks to take a
typing test in a quiet location rather than in a busy reception area
"because of a medical condition."  The employer may make
disability-related inquiries at this point because the applicant's need
for reasonable accommodation under the ADA is not obvious based on the
statement that an accommodation is needed "because of a medical
condition."  Specifically, the employer may ask the applicant to provide
documentation showing that she has an impairment that substantially limits
a major life activity and that she needs to take the typing test in a
quiet location because of disability-related functional limitations.35

Although an employer may not ask an applicant if s/he will need reasonable
accommodation for the job, there is an exception if the employer could
reasonably believe, before making a job offer, that the applicant will
need accommodation to perform the functions of the job.  For an individual
with a non-visible disability, this may occur if the individual
voluntarily discloses his/her disability or if s/he voluntarily tells the
employer that s/he needs reasonable accommodation to perform the job.  The
employer may then ask certain limited questions, specifically: 

            whether the applicant needs reasonable accommodation; and

            what type of reasonable accommodation would be needed to
perform the functions of the job.36

         After making an offer of employment, if the employer requires a
post-offer, preemployment medical examination or inquiry.  After an
employer extends an offer of employment, the employer may require a
medical examination (including a psychiatric examination) or ask questions
related to disability (including questions about psychiatric disability)
if the employer subjects all entering employees in the same job category
to the same inquiries or examinations regardless of disability.  The
inquiries and examinations do not need to be related to the job.37

         During employment, when a disability-related inquiry or medical
examination of an employee is "job-related and consistent with business
necessity."38 This requirement may be met when an employer has a
reasonable belief, based on objective evidence, that: (1) an employee's
ability to perform essential job functions39 will be impaired by a medical
condition; or (2) an employee will pose a direct threat due to a medical
condition.  Thus, for example, inquiries or medical examinations are
permitted if they follow-up on a request for reasonable accommodation when
the need for accommodation is not obvious, or if they address reasonable
concerns about whether an individual is fit to perform essential functions
of his/her position.  In addition, inquiries or examinations are permitted
if they are required by another Federal law or regulation.40 In these
situations, the inquiries or examinations must not exceed the scope of the
specific medical condition and its effect on the employee's ability, with
or without reasonable accommodation, to perform essential job functions or
to work without posing a direct threat.41

            Example B:  A delivery person does not learn the route he is
required to take when he makes deliveries in a particular neighborhood. 
He often does not deliver items at all or delivers them to the wrong
address.  He is not adequately performing his essential function of making
deliveries.  There is no indication, however, that his failure to learn
his route is related in any way to a medical condition.  Because the
employer does not have a reasonable belief, based on objective evidence,
that this individual's ability to perform his essential job function is
impaired by a medical condition, a medical examination (including a
psychiatric examination) or disability-related inquiries would not be
job-related and consistent with business necessity.42

            Example C:  A limousine service knows that one of its best
drivers has bipolar disorder and had a manic episode last year, which
started when he was driving a group of diplomats to around-the-clock
meetings.  During the manic episode, the chauffeur engaged in behavior
that posed a direct threat to himself and others (he repeatedly drove a
company limousine in a reckless manner).  After a short leave of absence,
he returned to work and to his usual high level of performance.  The
limousine service now wants to assign him to drive several business
executives who may begin around-the-clock labor negotiations during the
next several weeks.  The employer is concerned, however, that this will
trigger another manic episode and that, as a result, the employee will
drive recklessly and pose a significant risk of substantial harm to
himself and others.  There is no indication that the employee's condition
has changed in the last year, or that his manic episode last year was not
precipitated by the assignment to drive to around-the-clock meetings.  The
employer may make disability-related inquiries, or require a medical
examination, because it has a reasonable belief, based on objective
evidence, that the employee will pose a direct threat to himself or others
due to a medical condition. 

            Example D:  An employee with depression seeks to return to
work after a leave of absence during which she was hospitalized and her
medication was adjusted.  Her employer may request a fitness-for-duty
examination because it has a reasonable belief, based on the employee's
hospitalization and medication adjustment, that her ability to perform
essential job functions may continue to be impaired by a medical
condition.  This examination, however, must be limited to the effect of
her depression on her ability, with or without reasonable accommodation,
to perform essential job functions.  Inquiries about her entire
psychiatric history or about the details of her therapy sessions would,
for example, exceed this limited scope. 

15.  Do ADA confidentiality requirements apply to information about a
psychiatric disability disclosed to an employer? 

Yes.  Employers must keep all information concerning the medical condition
or history of its applicants or employees, including information about
psychiatric disability, confidential under the ADA.  This includes medical
information that an individual voluntarily tells his/her employer. 
Employers must collect and maintain such information on separate forms and
in separate medical files, apart from the usual personnel files.43 There
are limited exceptions to the ADA confidentiality requirements: 
   
         supervisors and managers may be told about necessary restrictions
on the work or duties of the employee and about necessary accommodations; 

         first aid and safety personnel may be told if the disability
might require emergency treatment; and

         government officials investigating compliance with the ADA must
be given relevant information on request.44

16.  How can an employer respond when employees ask questions about a
coworker who has a disability? 

If employees ask questions about a coworker who has a disability, the
employer must not disclose any medical information in response.  Apart
from the limited exceptions listed in Question 15, the ADA confidentiality
provisions prohibit such disclosure. 

An employer also may not tell employees whether it is providing a
reasonable accommodation for a particular individual.  A statement that an
individual receives a reasonable accommodation discloses that the
individual probably has a disability because only individuals with
disabilities are entitled to reasonable accommodation under the ADA.  In
response to coworker questions, however, the employer may explain that it
is acting for legitimate business reasons or in compliance with federal
law. 

      As background information for all employees, an employer may find it
helpful to explain the requirements of the ADA, including the obligation
to provide reasonable accommodation, in its employee handbook or in its
employee orientation or training. 

REQUESTING REASONABLE ACCOMMODATION

An employer must provide a reasonable accommodation to the known physical
or mental limitations of a qualified individual with a disability unless
it can show that the accommodation would impose an undue hardship.45 An
employee's decision about requesting reasonable accommodation may be
influenced by his/her concerns about the potential negative consequences
of disclosing a psychiatric disability at work.  Employees and employers
alike have posed numerous questions about what constitutes a request for
reasonable accommodation. 

17.  When an individual decides to request reasonable accommodation, what
must s/he say to make the request and start the reasonable accommodation
process? 

When an individual decides to request accommodation, the individual or
his/her representative must let the employer know that s/he needs an
adjustment or change at work for a reason related to a medical condition. 
To request accommodation, an individual may use "plain English" and need
not mention the ADA or use the phrase "reasonable accommodation."46

            Example A:  An employee asks for time off because he is
"depressed and stressed."  The employee has communicated a request for a
change at work (time off) for a reason related to a medical condition
(being "depressed and stressed" may be "plain English" for a medical
condition).  This statement is sufficient to put the employer on notice
that the employee is requesting reasonable accommodation.  However, if the
employee's need for accommodation is not obvious, the employer may ask for
reasonable documentation concerning the employee's disability and
functional limitations.47

            Example B:  An employee submits a note from a health
professional stating that he is having a stress reaction and needs one
week off. Subsequently, his wife telephones the Human Resources department
to say that the employee is disoriented and mentally falling apart and
that the family is having him hospitalized.  The wife asks about
procedures for extending the employee's leave and states that she will
provide the necessary information as soon as possible but that she may
need a little extra time.  The wife's statement is sufficient to
constitute a request for reasonable accommodation.  The wife has asked for
changes at work (an exception to the procedures for requesting leave and
more time off) for a reason related to a medical condition (her husband
had a stress reaction and is so mentally disoriented that he is being
hospitalized).  As in the previous example, if the need for accommodation
is not obvious, the employer may request documentation of disability and
clarification of the need for accommodation.48

            Example C:  An employee asks to take a few days off to rest
after the completion of a major project.  The employee does not link her
need for a few days off to a medical condition.  Thus, even though she has
requested a change at work (time off), her statement is not sufficient to
put the employer on notice that she is requesting reasonable
accommodation. 

18.  May someone other than the employee request a reasonable
accommodation on behalf of an individual with a disability? 

Yes, a family member, friend, health professional, or other representative
may request a reasonable accommodation on behalf of an individual with a
disability.49 Of course, an employee may refuse to accept an accommodation
that is not needed. 

19.   Do requests for reasonable accommodation need to be in writing?

No.  Requests for reasonable accommodation do not need to be in writing. 
Employees may request accommodations in conversation or may use any other
mode of communication.50

20.  When should an individual with a disability request a reasonable
accommodation to do the job? 

An individual with a disability is not required to request a reasonable
accommodation at the beginning of employment.  S/he may request a
reasonable accommodation at any time during employment.51

21.  May an employer ask an employee for documentation when the employee
requests reasonable accommodation for the job? 

Yes.  When the need for accommodation is not obvious, an employer may ask
an employee for reasonable documentation about his/her disability and
functional limitations.  The employer is entitled to know that the
employee has a covered disability for which s/he needs a reasonable
accommodation.52 A variety of health professionals may provide such
documentation with regard to psychiatric disabilities.53

            Example A:  An employee asks for time off because he is
"depressed and stressed."  Although this statement is sufficient to put
the employer on notice that he is requesting accommodation,54 the
employee's need for accommodation is not obvious based on this statement
alone. Accordingly, the employer may require reasonable documentation that
the employee has a disability within the meaning of the ADA and, if he has
such a disability, that the functional limitations of the disability
necessitate time off. 

            Example B:  Same as Example A, except that the employer
requires the employee to submit all of the records from his health
professional regarding his mental health history, including materials that
are not relevant to disability and reasonable accommodation under the ADA.
This is not a request for reasonable documentation.  All of these records
are not required to determine if the employee has a disability as defined
by the ADA and needs the requested reasonable accommodation because of his
disability-related functional limitations.  As one alternative, in order
to determine the scope of its ADA obligations, the employer may ask the
employee to sign a limited release allowing the employer to submit a list
of specific questions to the employee's health care professional about his
condition and need for reasonable accommodation. 

22.  May an employer require an employee to go to a health care
professional of the employer's (rather than the employee's) choice for
purposes of documenting need for accommodation and disability? 

The ADA does not prevent an employer from requiring an employee to go to
an appropriate health professional of the employer's choice if the
employee initially provides insufficient information to substantiate that
s/he has an ADA disability and needs a reasonable accommodation.  Of
course, any examination must be job-related and consistent with business
necessity.55 If an employer requires an employee to go to a health
professional of the employer's choice, the employer must pay all costs
associated with the visit(s). 

   
            SELECTED TYPES OF REASONABLE ACCOMMODATION

Reasonable accommodations for individuals with disabilities must be
determined on a case-by-case basis because workplaces and jobs vary, as do
people with disabilities.  Accommodations for individuals with psychiatric
disabilities may involve changes to workplace policies, procedures, or
practices.  Physical changes to the workplace or extra equipment also may
be effective reasonable accommodations for some people. 

In some instances, the precise nature of an effective accommodation for an
individual may not be immediately apparent.  Mental health professionals,
including psychiatric rehabilitation counselors, may be able to make
suggestions about particular accommodations and, of equal importance, help
employers and employees communicate effectively about reasonable
accommodation.56 The questions below discuss selected types of reasonable
accommodation that may be effective for certain individuals with
psychiatric disabilities.57

      
23.  Does reasonable accommodation include giving an individual with a
disability time off from work or a modified work schedule? 

Yes.  Permitting the use of accrued paid leave or providing additional
unpaid leave for treatment or recovery related to a disability is a
reasonable accommodation, unless (or until) the employee's absence imposes
an undue hardship on the operation of the employer's business.58 This
includes leaves of absence, occasional leave (e.g., a few hours at a
time), and part-time scheduling. 

A related reasonable accommodation is to allow an individual with a
disability to change his/her regularly scheduled working hours, for
example, to work 10 AM to 6 PM rather than 9 AM to 5 PM, barring undue
hardship.  Some medications taken for psychiatric disabilities cause
extreme grogginess and lack of concentration in the morning.  Depending on
the job, a later schedule can enable the employee to perform essential job
functions. 

24.  What types of physical changes to the workplace or equipment can
serve as accommodations for people with psychiatric disabilities? 

Simple physical changes to the workplace may be effective accommodations
for some individuals with psychiatric disabilities.  For example, room
dividers, partitions, or other soundproofing or visual barriers between
workspaces may accommodate individuals who have disability-related
limitations in concentration.  Moving an individual away from noisy
machinery or reducing other workplace noise that can be adjusted (e.g.,
lowering the volume or pitch of telephones) are similar reasonable
accommodations.  Permitting an individual to wear headphones to block out
noisy distractions also may be effective. 

Some individuals who have disability-related limitations in concentration
may benefit from access to equipment like a tape recorder for reviewing
events such as training sessions or meetings. 

25.   Is it a reasonable accommodation to modify a workplace policy?  

Yes.  It is a reasonable accommodation to modify a workplace policy when
necessitated by an individual's disability-related limitations, barring
undue hardship.59 For example, it would be a reasonable accommodation to
allow an individual with a disability, who has difficulty concentrating
due to the disability, to take detailed notes during client presentations
even though company policy discourages employees from taking extensive
notes during such sessions. 

            Example:  A retail employer does not allow individuals working
as cashiers to drink beverages at checkout stations.  The retailer also
limits cashiers to two 15-minute breaks during an eight-hour shift, in
addition to a meal break.  An individual with a psychiatric disability
needs to drink beverages approximately once an hour in order to combat dry
mouth, a side-effect of his psychiatric medication.  This individual
requests reasonable accommodation.  In this example, the employer should
consider either modifying its policy against drinking beverages at
checkout stations or modifying its policy limiting cashiers to two
15-minute breaks each day plus a meal break, barring undue hardship. 

Granting an employee time off from work or an adjusted work schedule as a
reasonable accommodation may involve modifying leave or attendance
procedures or policies.  As an example, it would be a reasonable
accommodation to modify a policy requiring employees to schedule vacation
time in advance if an otherwise qualified individual with a disability
needed to use accrued vacation time on an unscheduled basis because of
disability-related medical problems, barring undue hardship.60 In
addition, an employer, in spite of a "no-leave" policy, may, in
appropriate circumstances, be required to provide leave to an employee
with a disability as a reasonable accommodation, unless the provision of
leave would impose an undue hardship.61

 
26.   Is adjusting supervisory methods a form of reasonable accommodation?

Yes.  Supervisors play a central role in achieving effective reasonable
accommodations for their employees.  In some circumstances, supervisors
may be able to adjust their methods as a reasonable accommodation by, for
example, communicating assignments, instructions, or training by the
medium that is most effective for a particular individual (e.g., in
writing, in conversation, or by electronic mail).  Supervisors also may
provide or arrange additional training or modified training materials. 

Adjusting the level of supervision or structure sometimes may enable an
otherwise qualified individual with a disability to perform essential job
functions.  For example, an otherwise qualified individual with a
disability who experiences limitations in concentration may request more
detailed day-to-day guidance, feedback, or structure in order to perform
his job.62

            Example:  An employee requests more daily guidance and
feedback as a reasonable accommodation for limitations associated with a
psychiatric disability.  In response to his request, the employer consults
with the employee, his health care professional, and his supervisor about
how his limitations are manifested in the office (the employee is unable
to stay focused on the steps necessary to complete large projects) and how
to make effective and practical changes to provide the structure he needs. 
As a result of these consultations, the supervisor and employee work out a
long-term plan to initiate weekly meetings to review the status of large
projects and identify which steps need to be taken next. 

27.   Is it a reasonable accommodation to provide a job coach?

Yes.  An employer may be required to provide a temporary job coach to
assist in the training of a qualified individual with a disability as a
reasonable accommodation, barring undue hardship.63 An employer also may
be required to allow a job coach paid by a public or private social
service agency to accompany the employee at the job site as a reasonable
accommodation. 

28.  Is it a reasonable accommodation to make sure that an individual
takes medication as prescribed? 

No.  Medication monitoring is not a reasonable accommodation.  Employers
have no obligation to monitor medication because doing so does not remove
a barrier that is unique to the workplace.  When people do not take
medication as prescribed, it affects them on and off the job. 
   

29.  When is reassignment to a different position required as a reasonable
accommodation? 

In general, reassignment must be considered as a reasonable accommodation
when accommodation in the present job would cause undue hardship64 or
would not be possible.65 Reassignment may be considered if there are
circumstances under which both the employer and employee voluntarily agree
that it is preferable to accommodation in the present position.66

Reassignment should be made to an equivalent position that is vacant or
will become vacant within a reasonable amount of time.  If an equivalent
position is not available, the employer must look for a vacant position at
a lower level for which the employee is qualified.  Reassignment is not
required if a vacant position at a lower level is also unavailable. 

      
                              CONDUCT

Maintaining satisfactory conduct and performance typically is not a
problem for individuals with psychiatric disabilities.  Nonetheless,
circumstances arise when employers need to discipline individuals with
such disabilities for misconduct. 

30.  May an employer discipline an individual with a disability for
violating a workplace conduct standard if the misconduct resulted from a
disability? 

Yes, provided that the workplace conduct standard is job-related for the
position in question and is consistent with business necessity.67 For
example, nothing in the ADA prevents an employer from maintaining a
workplace free of violence or threats of violence, or from disciplining an
employee who steals or destroys property.  Thus, an employer may
discipline an employee with a disability for engaging in such misconduct
if it would impose the same discipline on an employee without a
disability.68 Other conduct standards, however, may not be job-related for
the position in question and consistent with business necessity.  If they
are not, imposing discipline under them could violate the ADA. 
         
            Example A:  An employee steals money from his employer.  Even
if he asserts that his misconduct was caused by a disability, the employer
may discipline him consistent with its uniform disciplinary policies
because the individual violated a conduct standard -- a prohibition
against employee theft -- that is job-related for the position in question
and consistent with business necessity. 
      
            Example B:  An employee at a clinic tampers with and
incapacitates medical equipment.  Even if the employee explains that she
did this because of her disability, the employer may discipline her
consistent with its uniform disciplinary policies because she violated a
conduct standard -- a rule prohibiting intentional damage to equipment --
that is job-related for the position in question and consistent with
business necessity.  However, if the employer disciplines her even though
it has not disciplined people without disabilities for the same
misconduct, the employer would be treating her differently because of
disability in violation of the ADA. 

            Example C:  An employee with a psychiatric disability works in
a warehouse loading boxes onto pallets for shipment.  He has no customer
contact and does not come into regular contact with other employees. Over
the course of several weeks, he has come to work appearing increasingly
disheveled.  His clothes are ill-fitting and often have tears in them.  He
also has become increasingly anti-social.  Coworkers have complained that
when they try to engage him in casual conversation, he walks away or gives
a curt reply.  When he has to talk to a coworker, he is abrupt and rude. 
His work, however, has not suffered.  The employer's company handbook
states that employees should have a neat appearance at all times.  The
handbook also states that employees should be courteous to each other. 
When told that he is being disciplined for his appearance and treatment of
coworkers, the employee explains that his appearance and demeanor have
deteriorated because of his disability which was exacerbated during this
time period. 

The dress code and coworker courtesy rules are not job-related for the
position in question and consistent with business necessity because this
employee has no customer contact and does not come into regular contact
with other employees.  Therefore, rigid application of these rules to this
employee would violate the ADA. 

31.  Must an employer make reasonable accommodation for an individual with
a disability who violated a conduct rule that is job-related for the
position in question and consistent with business necessity? 

An employer must make reasonable accommodation to enable an otherwise
qualified individual with a disability to meet such a conduct standard in
the future, barring undue hardship.69 Because reasonable accommodation is
always prospective, however, an employer is not required to excuse past
misconduct.70

            Example A:  A reference librarian frequently loses her temper
at work, disrupting the library atmosphere by shouting at patrons and
coworkers. After receiving a suspension as the second step in uniform,
progressive discipline, she discloses her disability, states that it
causes her behavior, and requests a leave of absence for treatment.  The
employer may discipline her because she violated a conduct standard -- a
rule prohibiting disruptive behavior towards patrons and coworkers -- that
is job-related for the position in question and consistent with business
necessity.  The employer, however, must grant her request for a leave of
absence as a reasonable accommodation, barring undue hardship, to enable
her to meet this conduct standard in the future. 

            Example B:  An employee with major depression is often late
for work because of medication side-effects that make him extremely groggy
in the morning.  His scheduled hours are 9:00 AM to 5:30 PM, but he
arrives at 9:00, 9:30, 10:00 or even 10:30 on any given day.  His job
responsibilities involve telephone contact with the company's traveling
sales representatives, who depend on him to answer urgent marketing
questions and expedite special orders.  The employer disciplines him for
tardiness, stating that continued failure to arrive promptly during the
next month will result in termination of his employment.  The individual
then explains that he was late because of a disability and needs to work
on a later schedule.  In this situation, the employer may discipline the
employee because he violated a conduct standard addressing tardiness that
is job-related for the position in question and consistent with business
necessity.  The employer, however, must consider reasonable accommodation,
barring undue hardship, to enable this individual to meet this standard in
the future.  For example, if this individual can serve the company's sales
representatives by regularly working a schedule of 10:00 AM to 6:30 PM, a
reasonable accommodation would be to modify his schedule so that he is not
required to report for work until 10:00 AM. 

            Example C:  An employee has a hostile altercation with his
supervisor and threatens the supervisor with physical harm.  The employer
immediately terminates the individual's employment, consistent with its
policy of immediately terminating the employment of anyone who threatens a
supervisor.  When he learns that his employment has been terminated, the
employee asks the employer to put the termination on hold and to give him
a month off for treatment instead.  This is the employee's first request
for accommodation and also the first time the employer learns about the
employee's disability.  The employer is not required to rescind the
discharge under these circumstances, because the employee violated a
conduct standard -- a rule prohibiting threats of physical harm against
supervisors -- that is job-related for the position in question and
consistent with business necessity.  The employer also is not required to
offer reasonable accommodation for the future because this individual is
no longer a qualified individual with a disability.  His employment was
terminated under a uniformly applied conduct standard that is job-related
for the position in question and consistent with business necessity.71
      
32.  How should an employer deal with an employee with a disability who is
engaging in misconduct because s/he is not taking his/her medication? 

The employer should focus on the employee's conduct and explain to the
employee the consequences of continued misconduct in terms of uniform
disciplinary procedures.  It is the employee's responsibility to decide
about medication and to consider the consequences of not taking
medication.72
      

                           DIRECT THREAT 

Under the ADA, an employer may lawfully exclude an individual from
employment for safety reasons only if the employer can show that
employment of the individual would pose a "direct threat."73 Employers
must apply the "direct threat" standard uniformly and may not use safety
concerns to justify exclusion of persons with disabilities when persons
without disabilities would not be excluded in similar circumstances.74

The EEOC's ADA regulations explain that "direct threat" means "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."75 A "significant" risk is a high, and not just a slightly
increased, risk.76 The determination that an individual poses a "direct
threat" must be based on an individualized assessment of the individual's
present ability to safely perform the functions of the job, considering a
reasonable medical judgment relying on the most current medical knowledge
and/or the best available objective evidence.77 With respect to the
employment of individuals with psychiatric disabilities, the employer must
identify the specific behavior that would pose a direct threat.78 An
individual does not pose a "direct threat" simply by virtue of having a
history of psychiatric disability or being treated for a psychiatric
disability.79

33.  Does an individual pose a direct threat in operating machinery solely
because s/he takes medication that may as a side effect diminish
concentration and/or coordination for some people? 

No.  An individual does not pose a direct threat solely because s/he takes
a medication that may diminish coordination or concentration for some
people as a side effect.  Whether such an individual poses a direct threat
must be determined on a case-by-case basis, based on a reasonable medical
judgment relying on the most current medical knowledge and/or on the best
available objective evidence.  Therefore, an employer must determine the
nature and severity of this individual's side effects, how those side
effects influence his/her ability to safely operate the machinery, and
whether s/he has had safety problems in the past when operating the same
or similar machinery while taking the medication.  If a significant risk
of substantial harm exists, then an employer must determine if there is a
reasonable accommodation that will reduce or eliminate the risk. 

            Example:  An individual receives an offer for a job in which
she will operate an electric saw, conditioned on a post-offer medical
examination.  In response to questions at this medical examination, the
individual discloses her psychiatric disability and states that she takes
a medication to control it.  This medication is known to sometimes affect
coordination and concentration.  The company doctor determines that the
individual experiences negligible side effects from the medication because
she takes a relatively low dosage.  She also had an excellent safety
record at a previous job, where she operated similar machinery while
taking the same medication.  This individual does not pose a direct
threat. 

34.  When can an employer refuse to hire someone based on his/her history
of violence or threats of violence? 

An employer may refuse to hire someone based on his/her history of
violence or threats of violence if it can show that the individual poses a
direct threat.  A determination of "direct threat" must be based on an
individualized assessment of the individual's present ability to safely
perform the functions of the job, considering the most current medical
knowledge and/or the best available objective evidence.  To find that an
individual with a psychiatric disability poses a direct threat, the
employer must identify the specific behavior on the part of the individual
that would pose the direct threat.  This includes an assessment of the
likelihood and imminence of future violence. 

            Example: An individual applies for a position with Employer X. 
When Employer X checks his employment background, she learns that he was
terminated two weeks ago by Employer Y, after he told a coworker that he
would get a gun and "get his supervisor if he tries anything again." 
Employer X also learns that these statements followed three months of
escalating incidents in which this individual had had several altercations
in the workplace, including one in which he had to be restrained from
fighting with a coworker.  He then revealed his disability to Employer Y. 
After being given time off for medical treatment, he continued to have
trouble controlling his temper and was seen punching the wall outside his
supervisor's office.  Finally, he made the threat against the supervisor
and was terminated.  Employer X learns that, since then, he has not
received any further medical treatment.  Employer X does not hire him,
stating that this history indicates that he poses a direct threat. 

This individual poses a direct threat as a result of his disability
because his recent overt acts and statements (including an attempted fight
with a coworker, punching the wall, and making a threatening statement
about the supervisor) support the conclusion that he poses a "significant
risk of substantial harm."  Furthermore, his prior treatment had no effect
on his behavior, he had received no subsequent treatment, and only two
weeks had elapsed since his termination, all supporting a finding of
direct threat. 

35.  Does an individual who has attempted suicide pose a direct threat
when s/he seeks to return to work? 

No, in most circumstances.  As with other questions of direct threat, an
employer must base its determination on an individualized assessment of
the person's ability to safely perform job functions when s/he returns to
work.  Attempting suicide does not mean that an individual poses an
imminent risk of harm to him/herself when s/he returns to work.  In
analyzing direct threat (including the likelihood and imminence of any
potential harm), the employer must seek reasonable medical judgments
relying on the most current medical knowledge and/or the best available
factual evidence concerning the employee. 

            Example:  An employee with a known psychiatric disability was
hospitalized for two suicide attempts, which occurred within several weeks
of each other.  When the employee asked to return to work, the employer
allowed him to return pending an evaluation of medical reports to
determine his ability to safely perform his job.  The individual's
therapist and psychiatrist both submitted documentation stating that he
could safely perform all of his job functions.  Moreover, the employee
performed his job safely after his return, without reasonable
accommodation.  The employer, however, terminated the individual's
employment after evaluating the doctor's and therapist's reports, without
citing any contradictory medical or factual evidence concerning the
employee's recovery.  Without more evidence, this employer cannot support
its determination that this individual poses a direct threat.80

      
                        PROFESSIONAL LICENSING

Individuals may have difficulty obtaining state-issued professional
licenses if they have, or have a record of, a psychiatric disability. 
When a psychiatric disability results in denial or delay of a professional
license, people may lose employment opportunities. 

36.  Would an individual have grounds for filing an ADA charge if an
employer refused to hire him/her (or revoked a job offer) because s/he did
not have a professional license due to a psychiatric disability? 

If an individual filed a charge on these grounds, EEOC would investigate
to determine whether the professional license was required by law for the
position at issue, and whether the employer in fact did not hire the
individual because s/he lacked the license.  If the employer did not hire
the individual because s/he lacked a legally-required professional
license, and the individual claims that the licensing process
discriminates against individuals with psychiatric disabilities, EEOC
would coordinate with the Department of Justice, Civil Rights Division,
Disability Rights Section, which enforces Title II of the ADA covering
state licensing requirements. 

1 42 U.S.C. �� 12101-12117, 12201-12213 (1994) (codified as amended). 

2 H.R. Rep. No. 101-485, pt. 3, at 31-32 (1990) [hereinafter House
Judiciary Report]. 

3 Between July 26, 1992, and September 30, 1996, approximately 12.7% of
ADA charges filed with EEOC were based on emotional or psychiatric
impairment.  These included charges based on anxiety disorders,
depression, bipolar disorder (manic depression), schizophrenia, and other
psychiatric impairments. 

4 The analysis in this guidance applies to federal sector complaints of
non-affirmative action employment discrimination arising under section 501
of the Rehabilitation Act of 1973.  29 U.S.C. � 791(g) (1994).  It also
applies to complaints of non-affirmative action employment discrimination
arising under section 503 and employment discrimination under section 504
of the Rehabilitation Act.  29 U.S.C. �� 793(d), 794(d) (1994). 

5 42 U.S.C. � 12102(2) (1994); 29 C.F.R. � 1630.2(g) (1996).  See
generally EEOC Compliance Manual � 902, Definition of the Term
"Disability," 8 FEP Manual (BNA) 405:7251 (1995). 

6 29 C.F.R. � 1630.2(h)(2) (1996).  This ADA regulatory definition also
refers to mental retardation, organic brain syndrome, and specific
learning disabilities.  These additional mental conditions, as well as
other neurological disorders such as Alzheimer's disease, are not the
primary focus of this guidance. 

7 See, e.g., Boldini v. Postmaster Gen., 928 F. Supp. 125, 130, 5 AD Cas.
(BNA) 11, 14 (D.N.H. 1995) (stating, under section 501 of the
Rehabilitation Act, that "in circumstances of mental impairment, a court
may give weight to a diagnosis of mental impairment which is described in
the Diagnostic and Statistical Manual of Mental Disorders of the American
Psychiatric Association . . . ."). 

8 These include various sexual behavior disorders, compulsive gambling,
kleptomania, pyromania, and psychoactive substance use disorders resulting
from current illegal use of drugs.  42 U.S.C. � 12211(b) (1994); 29 C.F.R.
� 1630.3(d) (1996). 

9 42 U.S.C. � 12210(a) (1994).  However, individuals who are not currently
engaging in the illegal use of drugs and who are participating in, or have
successfully completed, a supervised drug rehabilitation program (or who
have otherwise been successfully rehabilitated) may be covered by the ADA. 
Individuals who are erroneously regarded as engaging in the current
illegal use of drugs, but who are not engaging in such use, also may be
covered.  Id. at � 12210(b). 

  Individuals with psychiatric disabilities may, either as part of
their condition or separate from their condition, engage in the illegal
use of drugs.  In such cases, EEOC investigators may need to make a
factual determination about whether an employer treated an individual
adversely because of his/her psychiatric disability or because of his/her
illegal use of drugs. 

10 See DSM-IV chapter "Other Conditions That May Be a Focus of Clinical
Attention." 

11 Individuals who do not have a mental impairment but are treated by
their employers as having a substantially limiting impairment have a
disability as defined by the ADA because they are regarded as having a
substantially limiting impairment.  See EEOC Compliance Manual � 902.8,
Definition of the Term "Disability," 8 FEP Manual (BNA) 405:7282 (1995). 

12 This discussion refers to the terms "impairment" and "substantially
limit" in the present tense.  These references are not meant to imply that
the determinations of whether a condition is an impairment, or of whether
there is substantial limitation, are relevant only to whether an
individual meets the first part of the definition of "disability," i.e.,
actually has a physical or mental impairment that substantially limits a
major life activity.  These determinations also are relevant to whether an
individual has a record of a substantially limiting impairment or is
regarded as having a substantially limiting impairment.  See id. �� 902.7,
902.8, Definition of the Term "Disability," 8 FEP Manual (BNA)
405:7276-78, 7281 (1995). 

13 Id. � 902.2(c)(4), Definition of the Term "Disability," 8 FEP Manual
(BNA) 405:7258 (1995). 

14 42 U.S.C. � 12102(2)(A) (1994); 29 C.F.R. � 1630.2(g)(1) (1996).  See
also EEOC Compliance Manual � 902.3, Definition of the Term "Disability,"
8 FEP Manual (BNA) 405:7261 (1995). 

15 Interacting with others, as a major life activity, is not substantially
limited just because an individual is irritable or has some trouble
getting along with a supervisor or coworker. 

16 Sleeping is not substantially limited just because an individual has
some trouble getting to sleep or occasionally sleeps fitfully. 

17 See 29 C.F.R. pt. 1630 app. � 1630.2(j) (1996) ("[i]f an individual is
not substantially limited with respect to any other major life activity,
the individual's ability to perform the major life activity of working
should be considered . . . . "); see also EEOC Compliance Manual �
902.4(c)(2), Definition of the Term "Disability," 8 FEP Manual (BNA)
405:7266 (1995). 

18 42 U.S.C. � 12102(2) (1994). 

19 See generally EEOC Compliance Manual � 902.4, Definition of the Term
"Disability," 8 FEP Manual (BNA) 405:7262 (1995). 

20 See 29 C.F.R. � 1630.2(j) (1996). 

21 S. Rep. No. 101-116, at 23 (1989); H.R. Rep. No. 101-485, pt. 2, at 52
(1990); House Judiciary Report, supra n.2, at 28-29.  See also 29 C.F.R.
pt. 1630 app. � 1630.2(j) (1996). 

22 ADA cases in which courts have disregarded the positive effects of
medications or other treatment in the determination of disability include
Canon v. Clark, 883 F. Supp. 718, 4 AD Cas. (BNA) 734 (S.D. Fla. 1995)
(finding that individual with insulin-dependent diabetes stated an ADA
claim), and Sarsycki v. United Parcel Ser., 862 F. Supp. 336, 340, 3 AD
Cas. (BNA) 1039 (W.D. Okla. 1994) (stating that substantial limitation
should be evaluated without regard to medication and finding that an
individual with insulin-dependent diabetes had a disability under the
ADA).  Pertinent Rehabilitation Act cases in which courts have made
similar determinations include Liff v. Secretary of Transp., 1994 WL
579912, at *3-*4 (D.D.C. 1994) (deciding under the Rehabilitation Act,
after acknowledging pertinent ADA guidance, that depression controlled by
medication is a disability), and Gilbert v. Frank, 949 F.2d 637, 641, 2 AD
Cas. (BNA) 60 (2d Cir. 1991) (determining under the Rehabilitation Act
that an individual who could not function without kidney dialysis had a
substantially limiting impairment). 

   Cases in which courts have found that individuals are not
substantially limited after considering the positive effects of medication
are, in the Commission's view, incorrectly decided.  See, e.g., Mackie v.
Runyon, 804 F. Supp. 1508,1510-11, 2 AD Cas. (BNA) 260 (M.D. Fla. 1992)
(holding under section 501 of the Rehabilitation Act that bipolar disorder
stabilized by medication is not substantially limiting); Chandler v. City
of Dallas, 2 F.3d 1385, 1390-91, 2 AD Cas. (BNA) 1326 (5th Cir. 1993)
(holding under section 504 of the Rehabilitation Act that an individual
with insulin-dependent diabetes did not have a disability), cert.
denied,114 S. Ct. 1386, 3 AD Cas. (BNA) 512 (1994). 

23 Some individuals do not experience renewed symptoms when they stop
taking medication.  These individuals are still covered by the ADA,
however, if they have a record of a substantially limiting impairment
(i.e., if their psychiatric impairment was sufficiently severe and
long-lasting to be substantially limiting). 

24 If medications cause negative side effects, these side effects should
be considered in assessing whether the individual is substantially
limited.  See, e.g., Guice-Mills v. Derwinski, 967 F.2d 794, 2 AD Cas.
(BNA) 187 (2d Cir. 1992). 

25 EEOC Compliance Manual � 902.4(d), Definition of the Term "Disability,"
8 FEP Manual (BNA) 405:7273 (1995). 

26 Id., 8 FEP Manual (BNA) 405:7271. 

27 See, e.g., Clark v. Virginia Bd. of Bar Exam'rs, 861 F. Supp. 512, 3 AD
Cas. (BNA) 1066 (E.D. Va. 1994) (vacating its earlier ruling (at 3 AD Cas.
(BNA) 780) that plaintiff's recurrent major depression did not constitute
a "disability" under the ADA). 

28 29 C.F.R. � 1630.2(j)(ii) (1996); EEOC Compliance Manual� 902.3(b),
Definition of the Term "Disability," 8 FEP Manual (BNA) 405:7261 (1995). 

29 Substantial limitation in concentrating also may be associated with
learning disabilities, neurological disorders, and physical trauma to the
brain (e.g., stroke, brain tumor, or head injury in a car accident). 
Although this guidance does not focus on these particular impairments, the
analysis of basic ADA issues is consistent regardless of the nature of the
condition. 

30 A 1994 survey of 1,000 American adults reports that 71% averaged 5-8
hours of sleep a night on weeknights and that 55% averaged 5-8 hours a
night on weekends (with 37% getting more than 8 hours a night on
weekends).  See The Cutting Edge: Vital Statistics -- America's Sleep
Habits, Washington Post, May 24, 1994, Health Section at 5. 

31 See 42 U.S.C. � 12112(d)(2) (1994); 29 C.F.R. � 1630.13(a) (1996). See
also EEOC Enforcement Guidance: Preemployment Disability-Related Questions
and Medical Examinations at 4, 8 FEP Manual (BNA) 405:7192 (1995). 

32 Enforcement Guidance: Preemployment Disability-Related Questions and
Medical Examinations at 6, 8 FEP Manual (BNA) 405:7193 (1995). 

33 When a primary health care professional supplies documentation about a
psychiatric disability, his/her credibility depends on how well s/he knows
the individual and on his/her knowledge about the psychiatric disability. 

34 Important information about an applicant's functional limitations also
may be obtained from non-professionals, such as the applicant, his/her
family members, and friends. 

35 In response to the employer's request for documentation, the applicant
may elect to revoke the request for accommodation and to take the test in
the reception area.  In these circumstances, where the request for
reasonable accommodation has been withdrawn, the employer cannot continue
to insist on obtaining the documentation. 

36 EEOC Enforcement Guidance: Preemployment Disability-RelatedQuestions
and Medical Examinations at 6-7, 8 FEP Manual (BNA) 405:7193-94 (1995). 

37 If an employer uses the results of these inquiries or examinations to
screen out an individual because of disability, the employer must prove
that the exclusionary criteria are job-related and consistent with
business necessity, and cannot be met with reasonable accommodation, in
order to defend against a charge of employment discrimination.  42 U.S.C.
� 12112(b)(6) (1994); 29 C.F.R.�� 1630.10, 1630.14(b)(3), 1630.15(b)
(1996). 

38      42 U.S.C. � 12112(d)(4) (1994); 29 C.F.R. � 1630.14(c) (1996).

39 A "qualified" individual with a disability is one who can perform the
essential functions of a position with or without reasonable
accommodation. 42 U.S.C. � 12111(8) (1994).  An employer does not have to
lower production standards, whether qualitative or quantitative, to enable
an individual with a disability to perform an essential function.  See 29
C.F.R. pt. 1630 app. � 1630.2(n) (1996). 

40 29 C.F.R. � 1630.15(e) (1996) ("It may be a defense to a charge of
discrimination . . . that a challenged action is required or necessitated
by another Federal law or regulation . . . ."). 

41 There may be additional situations which could meet the "job-related
and consistent with business necessity" standard.  For example, periodic
medical examinations for public safety positions that are narrowly
tailored to address specific job-related concerns and are shown to be
consistent with business necessity would be permissible. 

42 Of course, an employer would be justified in taking disciplinary action
in these circumstances. 

43 For a discussion of other confidentiality issues, see EEOC Enforcement
Guidance: Preemployment Disability-Related Questions and Medical
Examinations at 21-23, 8 FEP Manual (BNA) 405:7201-02 (1995). 

44 42 U.S.C. � 12112(d)(3)(B), (4)(C) (1994); 29 C.F.R. � 1630.14(b)(1)
(1996).  The Commission has interpreted the ADA to allow employers to
disclose medical information to state workers' compensation offices, state
second injury funds, or workers' compensation insurance carriers in
accordance with state workers' compensation laws.  29 C.F.R. pt. 1630 app.
� 1630.14(b) (1996).  The Commission also has interpreted the ADA to
permit employers to use medical information for insurance purposes.  Id. 
See also EEOC Enforcement Guidance: Preemployment Disability-Related
Questions and Medical Examinations at 21 nn.24, 25, 8 FEP Manual (BNA)
405:7201 nn.24, 25 (1995). 

45 See 42 U.S.C. �� 12111(9), 12112(b)(5)(A) (1994); 29 C.F.R.� 1630.2(o),
.9 (1996); 29 C.F.R. pt. 1630 app. � 1630.9 (1996). 

46 Schmidt v. Safeway, Inc., 864 F. Supp. 991, 3 AD Cas. (BNA) 1141 (D.
Or. 1994) (an employee's request for reasonable accommodation need not use
"magic words" and can be in plain English).  See Bultemeyer v. Ft. Wayne
Community Schs., 6 AD Cas. (BNA) 67 (7th Cir. 1996) (an employee with a
known psychiatric disability requested reasonable accommodation by stating
that he could not do a particular job and by submitting a note from his
psychiatrist). 

47 See Question 21 infra about employers requesting documentation after
receiving a request for reasonable accommodation. 

48 In the Commission's view, Miller v. Nat'l Cas. Co., 61 F.3d 627, 4 AD
Cas. (BNA) 1089 (8th Cir. 1995) was incorrectly decided.  The court in
Miller held that the employer was not alerted to Miller's disability and
need for accommodation despite the fact that Miller's sister phoned the
employer repeatedly and informed it that Miller was falling apart mentally
and that the family was trying to get her into a hospital.  See also
Taylor v. Principal Financial Group, 5 AD Cas. (BNA) 1653(5th Cir. 1996). 

49 Cf.  Beck v. Univ. of Wis., 75 F.3d 1130, 5 AD Cas. (BNA) 304(7th Cir.
1996) (assuming, without discussion, that a doctor's note requesting
reasonable accommodation on behalf of his patient triggered the reasonable
accommodation process); Schmidt v. Safeway, Inc., 864 F. Supp. 991, 3 AD
Cas. (BNA) 1141 (D. Or. 1994) (stating that a doctor need not be expressly
authorized to request accommodation on behalf of an employee in order to
make a valid request). 

  In addition, because the reasonable accommodation process presumes open
communication between the employer and the employee with the disability,
the employer should be receptive to any relevant information or requests
it receives from a third party acting on the employee's behalf.  29 C.F.R.
pt. 1630 app. � 1630.9 (1996). 

50 Although individuals with disabilities are not required to keep
records, they may find it useful to document requests for reasonable
accommodation in the event there is a dispute about whether or when they
requested accommodation.  Of course, employers must keep all employment
records, including records of requests for reasonable accommodation, for
one year from the making of the record or the personnel action involved,
whichever occurs later.  29 C.F.R. � 1602.14 (1996). 

51 As a practical matter, it may be in the employee's interest to request
a reasonable accommodation before performance suffers or conduct problems
occur. 

52 EEOC Enforcement Guidance: Preemployment Disability-Related Questions
and Medical Examinations at 6, 8 FEP Manual (BNA) 405:7193 (1995). 

53 See supra nn.32-34 and accompanying text.  See also Bultemeyer v. Ft.
Wayne Community Schs., 6 AD Cas. (BNA) 67 (7th Cir. 1996) (stating that,
if employer found the precise meaning of employee's request for reasonable
accommodation unclear, employer should have spoken to the employee or his
psychiatrist, thus properly engaging in the interactive process). 

54 See Question 17, Example A, supra. 

55 Employers also may consider alternatives like having their health
professional consult with the employee's health professional, with the
employee's consent. 

56 The Job Accommodation Network (JAN) also provides advice free-of-charge
to employers and employees contemplating reasonable accommodation.  JAN is
a service of the President's Committee on Employment of People with
Disabilities which, in turn, is funded by the U.S. Department of Labor. 
JAN can be reached at 1-800-ADA-WORK. 

57 Some of the accommodations discussed in this section also may prove
effective for individuals with traumatic brain injuries, stroke, and other
mental disabilities.  As a general matter, a covered employer must provide
reasonable accommodation to the known physical or mental limitations of an
otherwise qualified individual with a disability, barring undue hardship. 
42 U.S.C. � 12112(b)(5)(A) (1994). 

58 29 C.F.R. pt. 1630 app. � 1630.2(o) (1996).  Courts have recognized
leave as a reasonable accommodation.  See, e.g., Vande Zande v. Wis. Dep't
of Admin., 44 F.3d 538, 3 AD Cas. (BNA) 1636 (7th Cir. 1995) (defendant
had duty to accommodate plaintiff's pressure ulcers resulting from her
paralysis which required her to stay home for several weeks); Vializ v.
New York City Bd. of Educ., 1995 WL 110112, 4 AD Cas. (BNA) 345 (S.D.N.Y.
1995) (plaintiff stated claim under ADA where she alleged that she would
be able to return to work after back injury if defendant granted her a
temporary leave of absence); Schmidt v. Safeway, Inc., 864 F. Supp. 991, 3
AD Cas. (BNA) 1141 (D. Or. 1994) ("[A] leave of absence to obtain medical
treatment is a reasonable accommodation if it is likely that, following
treatment, [the employee] would have been able to safely perform his
duties . . . ."). 

59 42 U.S.C. � 12111(9)(B) (1994); 29 C.F.R. � 1630.2(o)(2)(ii) (1996). 

60 See Dutton v. Johnson County Bd., 1995 WL 337588, 3 AD Cas. (BNA) 1614
(D. Kan. 1995) (it was a reasonable accommodation to permit an individual
with a disability to use unscheduled vacation time to cover absence for
migraine headaches, where that did not pose an undue hardship and employer
knew about the migraine headaches and the need for accommodation). 

61 See 29 C.F.R. pt. 1630 app. � 1630.15(b), (c) (1996). 

62 Reasonable accommodation, however, does not require lowering standards
or removing essential functions of the job.  Bolstein v. Reich, 1995 WL
46387, 3 AD Cas. (BNA) 1761 (D.D.C. 1995) (attorney with chronic
depression and severe personality disturbance was not a qualified
individual with a disability because his requested accommodations of more
supervision, less complex assignments, and the exclusion of appellate work
would free him of the very duties that justified his GS-14 grade), motion
for summary affirmance granted, 1995 WL 686236 (D.C. Cir. 1995).  The
court in Bolstein noted that the plaintiff objected to a reassignment to a
lower grade in which he could have performed the essential functions of
the position.  1995 WL 46387, * 4, 3 AD Cas. (BNA) 1761, 1764 (D.D.C.
1995). 

63 See 29 C.F.R. pt. 1630 app. � 1630.9 (1996) (discussing supported
employment); U.S. Equal Employment Opportunity Commission, "A Technical
Assistance Manual on the Employment Provisions (Title I) of the Americans
with Disabilities Act," at 3.4, 8 FEP Manual (BNA) 405:7001 (1992)
[hereinafter Technical Assistance Manual].  A job coach is a professional
who assists individuals with severe disabilities with job placement and
job training. 

64 For example, it may be an undue hardship to provide extra supervision
as a reasonable accommodation in the present job if the employee's current
supervisor is already very busy supervising several other individuals and
providing direct service to the public. 

65 42 U.S.C. � 12111(9)(B) (1994).  For example, it may not be possible to
accommodate an employee in his present position if he works as a
salesperson on the busy first floor of a major department store and needs
a reduction in visual distractions and ambient noise as a reasonable
accommodation. 

   See EEOC Enforcement Guidance:  Workers' Compensation and the ADA
at 17, 8 FEP Manual (BNA) 405:7399-7400 (1996) (where an employee can no
longer perform the essential functions of his/her original position, with
or without a reasonable accommodation, because of a disability, an
employer must reassign him/her to an equivalent vacant position for which
s/he is qualified, absent undue hardship). 

66 Technical Assistance Manual, supra note 63, at 3.10(5), 8 FEP Manual
(BNA) 405:7011-12 (reassignment to a vacant position as a reasonable
accommodation); see also 42 U.S.C. � 12111(9)(B) (1994); 29 C.F.R. �
1630.2(o)(2)(ii) (1996). 

67 42 U.S.C. � 12112(b)(6) (1994); 29 C.F.R. � 1630.10, .15(c) (1996). 

68 See EEOC Compliance Manual � 902.2, n.11, Definition of the Term
"Disability," 8 FEP Manual (BNA) 405:7259, n.11 (1995) (an employer "does
not have to excuse . . . misconduct, even if the misconduct results from
an impairment that rises to the level of a disability, if it does not
excuse similar misconduct from its other employees"); see 56 Fed. Reg.
35,733 (1991) (referring to revisions to proposed ADA rule that "clarify
that employers may hold all employees, disabled (including those disabled
by alcoholism or drug addiction) and nondisabled, to the same performance
and conduct standards"). 

69 See 29 C.F.R. � 1630.15(d) (1996). 

70 Therefore, it may be in the employee's interest to request a reasonable
accommodation before performance suffers or conduct problems occur.  See
Question 20 supra. 

71 Regardless of misconduct, an individual with a disability must be
allowed to file a grievance or appeal challenging his/her termination when
that is a right normally available to other employees. 

72 If the employee requests reasonable accommodation in order to address
the misconduct, the employer must grant the request, subject to undue
hardship. 

73 See 42 U.S.C. � 12113(b) (1994). 

74 29 C.F.R. pt. 1630 app. � 1630.2(r) (1996). 

75 29 C.F.R. � 1630.2(r) (1996).  To determine whether an individual would
pose a direct threat, the factors to be considered include:  (1) duration
of the risk; (2) nature and severity of the potential harm; (3) likelihood
that the potential harm will occur; and (4) imminence of the potential
harm.  Id. 

76 29 C.F.R. pt. 1630 app. � 1630.2(r) (1996). 

77 29 C.F.R. � 1630.2(r) (1996). 

78 29 C.F.R. pt. 1630 app. � 1630.2(r) (1996). 

79 House Judiciary Report, supra n.2, at 45. 

80 Cf. Ofat v. Ohio Civ. Rights Comm'n, 1995 WL 310051, 4 AD Cas. (BNA)
753 (Ohio Ct. App. 1995) (finding against employer, under state law, on
issue of whether employee who had panic disorder with agoraphobia could
safely return to her job after disability-related leave, where employer
presented no expert evidence about employee's disability or its effect on
her ability to safely perform her job but only provided copies of pages
from a medical text generally discussing the employee's illness).
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