Responding to Employees and Students with Mental Health Needs SAI Law Conference February 7, 2017 Danielle Haindfield Miriam Van Heukelem dhaindfield@ahlerslaw.com mvanheukelem@ahlerslaw.com
Part 1: Applicable Laws
The Americans with Disabilities Act (“ADA”): prohibits discrimination against qualified individuals on the basis of physical or mental disability. Requires reasonable accommodations.
Section 504 of the Rehabilitation Act: prohibits discrimination on the basis of disability in federally funded programs. Also requires accommodations to ensure equal access.
The Individuals with Disabilities Education Act (“IDEA”): provides substantive and procedural rights to students with disabilities who require special education because of disability.
The Iowa Civil Rights Act (“ICRA”): prohibits discrimination against a qualified person with a disability because of the person’s disability.
Part 2: Employees
General rule: No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. Source: The Americans with Disabilities Act, 42 U.S.C. § 12112(a).
• Definitions: “Qualified Individual” – The individual with a disability must be able to perform the essential functions of their position. – “Essential functions” are the fundamental job duties of the employment position the individual with a disability holds or desire, with or without a reasonable accommodation. – Main source: Job Descriptions Key Issue: Can employee still perform the essential functions with or without accommodations?
• Definitions: “Disability” – A physical or mental impairment that substantially limits one or more major life activities of such individual; – a record of such an impairment; or – being regarded as having such an impairment.
– Definitions: “Mental impairment” • “Any mental or psychological disorder, such as … emotional or mental illness[.]” Examples include but are not limited to PTSD, Major/Chronic Depressive Disorder, Anxiety/Depressive Disorders, Bipolar Disorder, Obsessive Compulsive Disorder, Schizophrenia, other disorders or conditions affecting personality and mental capacity
Possible signs of mental impairment: – Working slowly or missing deadlines – Erratic, uncharacteristic, or unexplained behavior – Increasing absenteeism and calling in sick – Irritability and anger with co-workers and supervisor – Difficulty concentrating
More possible signs of mental impairment: – Appearing numb or emotionless – Withdrawing from work activity – Overworking – Forgetting directives, procedures and requests – Having difficulty with work transitions, changes in routines, or making decisions
Employers and co-workers should avoid trying to diagnose an employee’s condition or mental impairment. Such diagnoses should be left to appropriate health care professionals.
Example 1: Sam, 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. � Does Sam have a “disability”? Source: EEOC Enforcement Guidance
Example 2: Steve 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. � Does Steve have a “disability”? Source: EEOC Enforcement Guidance
• Definition: “Substantially limits” – Need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting – Fact-specific inquiry – Episodic: An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active
• Definition: “Substantially limits” – Mitigating Measures/Medications: • Federal law: Whether an impairment substantially limits a major life activity is made without regard mitigating measures such as medication, medical supplies, equipment, etc. • Iowa law: Cannot consider MMs in determining the existence of an impairment, but may be considered in determining whether the impairment substantially limits a major life activity.
• Definitions: “ Major Life Activity” – Includes: • Bodily Functions such as immune system, digestive, neurological, etc. • Life Tasks such as caring for oneself, seeing, hearing, eating, walking, etc. – Note: This definition also includes activities commonly affected by mental impairments such as sleeping , concentrating , and thinking
Example 3: Judy has had major depression for almost a year. She has been intensely sad and socially withdrawn (except for going to work), has developed serious insomnia, and has had severe problems concentrating. � Does Judy have a Qualifying Disability? Source: EEOC Enforcement Guidance
Example 4: Jane took medication for bipolar disorder for a few months. Before starting medication, she experienced increasingly severe and frequent cycles of depression and mania; at times, she became extremely withdrawn socially or had difficulty caring for himself. Her symptoms have abated with medication, but her doctor says that the duration and course of her bipolar disorder is indefinite. � Does Jane have a Qualifying Disability? Source: EEOC Enforcement Guidance
Example 5: Travis 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. � Does Travis have a Qualifying Disability? Source: EEOC Enforcement Guidance
• Definition: Having a “record” of an impairment – Documented history of a qualifying impairment
• Definition: “Regarded As” having an impairment – An individual establishes he or she has been subjected to an discriminatory action because of an actual or perceived physical or mental impairment whether or not the impairment actually limits or is perceived to limit a major life activity.
A qualified individual with a disability must be provided a REASONABLE ACCOMMODATION unless Doing so would impose an UNDUE BURDEN on the employer .
Employee’s Obligations: – Generally must inform the employer of need for accommodation – Does not need to use “magic words” of “reasonable accommodation”
Co-Worker’s Obligations: – May/should report behaviors or performance issues affecting workplace environment or creating concern of direct threat – Should not harass or subject employee to discriminatory treatment
Employer’s Obligations: • Generally, should not act until employee informs of need for reasonable accommodation • Exceptions creating duty to initiate “interactive process”: • Becomes aware of disability and need is observable and/or obvious • Direct risk to health and safety
“The employer has to meet the employee half-way, and if it appears that the employee may need an accommodation but doesn’t know how to ask for it, the employer should do what it can to help.” Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281 (7th Cir. 1996)
Employer’s Obligations : • Confidentiality : – Do NOT tell other employees that a coworker has a disability or is receiving a reasonable accommodation – EEOC guidance: In response to coworker questions, explain only that the employer is acting for “legitimate business reasons” or “in compliance with federal law”
Reasonable Accommodations: – Any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. – Accommodations should be: • Reasonable – not an undue burden on the employer, and • Effective – enables the employee to perform the essential functions of the job.
Examples of Possible Accommodations: • Job restructuring • Part-time or modified work schedules • Acquiring or modifying equipment • Changing tests, training materials, or policies • Providing qualified readers or interpreters • Reassignment to a vacant position • Leave
Examples of unreasonable accommodations: – Eliminate a job’s essential function – Lower production/performance standards – Provide personal use items or assistive devices; e.g. hearing aids, wheelchair – Create new position or train employee for new position (when training is not ordinarily provided to other employees)
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