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By A. Jonathan Trafimow, Caitlyn M. Ryan
Jun. 6, 2018
The number of psychiatric disability discrimination claims brought under the Americans with Disabilities Act of 1990 has been increasing significantly in recent years, now comprising nearly 30 percent of all ADA charges filed with the Equal Employment Opportunity Commission.
If a particular workplace and labor force has not already been impacted by this unmistakable national trend, it may well be in the near future. For both psychiatric and physical disabilities, an employee must satisfy two criteria in order to be entitled to a reasonable accommodation under the ADA.
First, the employee must have a “disability,” defined as a “physical or mental impairment that substantially limits one or more major life activities,” a “record of such impairment,” or be “regarded as having such impairment.”
Second, the employee must be a “qualified individual,” meaning that he or she is capable of performing the essential functions of his or her job with or without an accommodation. If the employee satisfies both of the above criteria, the employer must provide the employee with a reasonable accommodation, provided that the accommodation does not impose an undue burden on the employer.
The application of these requirements in ADA psychiatric disability cases presents very distinct challenges. For example, if an employee works in the customer service industry where appropriately interacting with the public is an essential function of the job, an employee with a psychiatric disability that causes inappropriate behavior such as shouting or making offensive comments to customers may or may not be qualified within the meaning of the ADA. This ultimately depends on whether he or she is capable of complying with the conduct standards of the job with or without a reasonable accommodation.
To assess whether a reasonable accommodation that will allow the employee to perform the essential functions of the job is possible, it is absolutely critical that the employer and human resources team communicate effectively with the employee. There needs to be a consistent, honest and ongoing dialogue to explore and identify, if possible, a set of accommodations that works well for everyone.
The often complex and multifaceted issues involved with psychiatric disabilities can only be effectively addressed on an individualized basis. Constructive and ongoing feedback from the employee is absolutely essential for this to happen, and further enhances the value of a workplace offering a professional atmosphere that values trust and openness.
It is also crucial to keep in mind that an employee who violates the conduct standards at his or her place of employment is not immune from discipline just because the violation is a direct result of the psychiatric disability.
For example, in one particular case [Higgins v. Maryland Department of Agriculture, No. L-11-0081, 2012 WL 665985, at *2, 6 (D. Md. Feb. 28, 2012)], the court held that a director with bipolar disorder who was responsible for interacting with health professionals, government officials and members of the public on a daily basis was properly terminated because his abusive and abrasive behavior was inconsistent with company policy and incompatible with an essential function of the job.
In contrast, in situations where an employee’s conduct is not incompatible with the job’s standards, courts may determine that the employer had a legal duty to provide a reasonable accommodation.
Examples of what could be appropriate accommodations for employees with psychiatric disabilities, depending on the particular circumstances, include permitting the use of accrued paid leave or additional unpaid leave for treatment or recovery; modifying the employee’s work schedule; installing room dividers or partitions; relocating the employee to a quieter workspace or permitting the use of headphones; adjusting supervisory methods; providing or otherwise allowing a job coach to accompany the employee or reassigning an employee to an equivalent position.
If the ADA psychiatric disability filings are an accurate indicator, we are in the midst of a growing recognition that accommodating psychiatric disabilities in the workplace is an increasing employment concern. Employers, of course, must understand their legal obligations with respect to the ADA (as well as state and local anti-disability discrimination laws they may be subject to).
Employers are encouraged to explore how to accommodate their employees with psychiatric disabilities through engaging in an open dialogue with them to understand their workplace challenges and the unique ways in which they manage those challenges each and every day.
A. Jonathan Trafimow is a partner at Moritt Hock & Hamroff and chair of the firm’s Employment Law practice. Caitlyn M. Ryan is an associate at the firm. Comment below or email email@example.com.
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