Employing People with Mental Health Disabilities

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Scope— This article discusses the employment and management of persons with mental health disabilities. It presents methods available to human resource professionals for recognizing the symptoms and dealing with the effects of mental health disabilities as well as addressing accommodations and the legal issues pertaining to employees with mental illnesses. 

Overview

Depression, bipolar disorder, anxiety disorders and other mental health impairments can rise to the level of disabilities under the Americans with Disabilities Act and thereby require employers to make accommodations for workers with such conditions. This article discusses the background and the legal context for accommodating applicants and employees who have psychiatric disabilities, and it sets forth HR's role in working with persons with mental health impairments. Major portions of the article deal with staffing issues, making accommodations for disabled employees, performance management and workplace safety.

Background

Mental Health America, formerly the National Mental Health Association, describes a mental illness as one "that causes mild to severe disturbances in thought and/or behavior patterns, resulting in an inability to cope with life's ordinary demands, routines and pressures."1

The American Psychiatric Association (APA) lists more than 200 forms of mental illness in its Diagnostic and Statistical Manual of Mental Disorders (DSM), an authoritative compilation of mental health impairments. Conditions listed include anxiety disorders, depression, bipolar disorder, schizophrenia, obsessive-compulsive disorder, post-traumatic stress disorder, mental retardation, learning disabilities and neurological disorders.

Each year about 1 in 5 Americans experience some form of mental health impairment, according to the National Alliance on Mental Illness. Such an impairment, the organization says, is one that disrupts one's "thinking, feeling, mood, ability to relate to others and daily functioning."2

The National Institute of Mental Health estimates that one in 17 adults lives with a serious psychiatric condition, such as anxiety, schizophrenia, major depression or bipolar disorder. Moreover, the institute "estimates that one in five people will experience a psychiatric disability in their lifetime," according to an article from the U.S. Department of Labor's (DOL's) Office of Disability Employment Policy.3 Such a disability can affect multiple aspects of a person's life, including a person's ability to be productive in the workplace. "It is likely," the article states, "that most employers have at least one employee with a psychiatric disability."4 See Maximizing Productivity: Accommodations for Employees with Psychiatric Disabilities.

Legal Framework

For employers, the pivotal federal standards regarding disabilities—psychiatric as well as physical—are set forth primarily in the Americans with Disabilities (ADA), which prohibits employers with 15 or more employees from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training and other employment matters. In 2008, amendments were enacted that instituted changes in the definition of "disability," making it easier for those seeking protection under the ADA to establish that they have a disability within the meaning of the ADA.

The Equal Employment Opportunities Commission (EEOC) guidance notes that the ADA defines "mental impairment" as any "mental or psychological disorder, such as emotional or mental illness." Examples include "major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia and personality disorders."5 However, although some people with mental health impairments will have employment protection under the ADA, others will not. Even the fact that a person has a condition listed in the DSM does not automatically mean the person has a disability as defined by the ADA or the Americans with Disabilities Act Amendments Act (ADAAA). For example, according to the EEOC, though "the DSM-IV covers conditions involving drug abuse," the ADA says a person engaged in illegal drug use is not an "individual with a disability" when an employer takes action on the basis of that drug use.6 See EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities.

To have employment protection under the ADA, a person with a physical or psychiatric condition must meet two principal criteria:

  • Be qualified for the job. A qualified employee or applicant is one who, with or without reasonable accommodation for a disability, can perform the essential functions of the job in question.
  • Have a disability as defined by the law. The ADA does not list medical conditions that constitute disabilities; instead, it has a general definition of disability. According to the ADA, a person has a disability if he or she meets one of the following criteria:
    • Has a physical or mental impairment that substantially limits one or more major life activities.
    • Has a record of such an impairment.
    • Is regarded as having such an impairment.

See Does the Americans with Disabilities Act (ADA) provide a list of conditions that are covered under the act?

The key requirement is that an impairment must "substantially limit" one or more of a person's major life activities. "The major life activities limited by mental impairments differ from person to person," according to the EEOC.7 For some, mental impairments may restrict "learning, thinking, concentrating, interacting with others, caring for oneself, speaking, performing manual tasks, or working. Sleeping is also a major life activity that may be limited by mental impairments."8

The ADAAA expanded the definition of "disability" after "Congress found that persons with many types of impairments—including epilepsy, diabetes, multiple sclerosis, major depression and bipolar disorder"—had been unable to meet the ADA's definition.9 The EEOC adds that although traits or behaviors such as irritability, chronic lateness, poor judgment and stress are not, in themselves, mental impairments, they may be linked to mental or physical impairments.

In addition, Section 503 of the Rehabilitation Act of 1973 prohibits federal contractors and subcontractors from discriminating in employment against individuals with disabilities (IWDs), and requires these employers to take affirmative action to recruit, hire, promote and retain these individuals. Section 503 was amended in 2013 in an effort to strengthen the affirmative action provisions of the regulations, to aid contractors in their efforts to recruit and hire IWDs, and to improve job opportunities for individuals with disabilities. See OFCCP's New Regulations to Improve Job Opportunities for Individuals with Disabilities.

Business Case

Although most employers are familiar with the federal rules for making reasonable workplace accommodations for people with physical disabilities, "they may be less familiar with accommodations for employees with disabilities that are not visible, such as psychiatric disabilities," according to the DOL.13 "Reasonable accommodations are adjustments to a work setting that make it possible for qualified employees with disabilities to perform the essential functions of their jobs."11 Most such accommodations cost little or nothing, "can be good for business . . . and can be key to recruiting and retaining qualified employees."12

Moreover, a healthy workplace can contribute to the mental health of employees. When good management practices are in place and employees are valued and respected, the workplace is much less likely to create, contribute to or intensify mental health problems. In addition, a work environment that is adapted to fit a particular individual's disability is safer and more efficient for all employees.

See:

Businesses Benefit from the Perspectives of Their Employees with Disabilities

What are some common myths about hiring people with disabilities that impede disability recruiting initiatives?

HR's Role

Human resource professionals need to be particularly knowledgeable about mental impairments that could affect employees or applicants. In addition, HR must be familiar with laws and rules on hiring and managing persons with mental health disabilities, with the various ways of making reasonable accommodations for such applicants and employees, and with the workplace education that might be needed to encourage proper regard among co-workers for such employees.

HR should also be aware of the potential challenges involved. Although many employees with psychiatric disabilities may be indistinguishable from others in the workplace, some may occasionally be disruptive. HR needs to know how to possibly discipline employees whose workplace behavior affects job performance.

Although it is not the responsibility of employers, HR managers or supervisors to diagnose possible impairments, being aware of the signs that suggest someone might be experiencing a mental illness can be beneficial.

HR managers are an organization's front line in the struggle to overcome the stigma of seeking treatment for mental illness. Through education and advocacy, they can ensure that employees know the symptoms and causes of mental illness and how to access mental health services. HR can encourage employees to seek such help just as they would encourage treatment for physical illnesses or injuries.

Through training, HR professionals help supervisors and managers recognize possible signs of mental illness and provide them with the necessary skills for working with subordinates or peers who may need referrals or support.

Mental illness includes a broad range of symptoms and behaviors, and it is not a simple process to determine whether someone actually has a mental illness. Learning more about mental illness is one step every employer can and should take. The U.S. Department of Health and Human Resources is a valuable resource for comprehensive information and resources for mental health issues. See Coping with Employees' Mental Illnesses Can Be Challenging.

Staffing Considerations

Employers' actions throughout the staffing process are subject to various federal and state laws and regulations aimed at ensuring fairness and preventing discrimination. Among the types of potential discrimination addressed by such rules are those arising from disability—whether physical or psychiatric. Following are brief discussions of how persons with mental health disabilities are to be treated through steps in hiring.

Employment applications

An employment application should not include any questions whose answers would indicate an applicant's protected class such as age, race, national origin or disability. On application forms, as in interview questions, an employer may not ask disability-related questions until after a conditional job offer is extended. According to EEOC guidance, "This helps ensure that an applicant's possible hidden disability (including a prior history of a disability) is not considered before the employer evaluates an applicant's non-medical qualifications." See ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations.

Employers should proceed with caution when designing application forms. It is best to have forms reviewed by legal counsel before distribution. See Guidelines on Interview and Employment Application Questions.

Job descriptions

Federal regulations and guidance pertaining to the ADA do not require employers to have job descriptions. However, employers that choose to have job descriptions will find that the ADA has a significant impact on format and content. Because the employment provisions of the ADA focus on essential functions, the employer must ensure that the job description covers all essential functions to assist in determining if an applicant or employee can perform the essential functions of the job, with or without accommodation. EEOC guidance identifies several reasons why a function could be considered essential:

  • The position exists to perform the function. For example, a person is hired to proofread documents. The ability to proofread accurately is an essential function because this is the reason that this position exists.
  • There are a limited number of other employees available to perform the function, or among whom the function can be distributed. For example, it may be an essential function for a file clerk to answer the telephone if there are only three employees in a very busy office and each employee has to perform many different tasks.
  • A function is highly specialized, and the person in the position is hired for special expertise or ability to perform it. For example, a company wishes to expand its business with Japan. For a new sales position, in addition to sales experience, it requires a person who can communicate fluently in Japanese. Fluent communication in the Japanese language is an essential function of the job.

See How to Develop a Job Description.

Interviewing

The job interview—a critical step for helping the employer identify the applicant who has the best mix of knowledge, skills and abilities for the position available—requires some preparation for candidates with disabilities. Employers need to ensure employment offices and interviewing locations are accessible to persons with a variety of disabilities. HR and hiring managers must be willing to make appropriate and reasonable accommodations to enable an applicant with a disability to participate in the interview, explaining ahead of time what is involved in the process. Also applicants should be informed ahead of time if they will be required to take a test to demonstrate their ability to perform actual or simulated tasks; advanced notice enables applicants with disabilities to request a reasonable accommodation, such as a different format for a written test, if necessary. (Such tests are permitted under the ADA as long as they are uniformly offered to all applicants.)

If an applicant's disability becomes apparent during the interview, employers should concentrate on the individual, not the disability, and ask only job-related questions that relate to the functions of the job for which the applicant is applying. Interviewers should treat disabled individuals with the same respect they would accord other candidates.

See:

Guidelines on Interview and Employment Application Questions

Discussing Disability with the Potential Employer

Reasonable Accommodations for Job Applications and Interviews

Medical examinations

An employer is prohibited from asking a job applicant to answer medical questions or to take a medical exam until after a job offer has been extended to the applicant. An employer also may not ask job applicants if they have a disability. However, employers may ask job applicants whether they can perform the essential functions of the job with or without accommodation.

Once an offer of employment has been extended to an applicant, employers may condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam—but only if all similarly situated employees are treated equally regardless of whether they are disabled.

Employers may make medical inquiries or require medical examinations of newly hired or existing employees only if one of the following applies to the employer:

  • The employer needs the medical documentation to support an employee's request for an accommodation.
  • The employer believes an employee is unable to perform a job's essential functions.
  • The employer believes the health or safety or the individual or others is at risk.

See Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act.

Accommodations

Whether an individual's disability is physical or psychiatric, the employer's responsibility to make reasonable accommodations for the employee is the same. Accommodations are made to help employees with disabilities overcome the functional limitations that prevent them from performing essential duties of the job. Accommodations vary—just as people's strengths, work environments and job duties vary—and they demonstrate a commitment to a healthier, more equitable workplace.

Accommodations are often inexpensive and easy to implement. They can range from making existing facilities accessible to job restructuring, acquiring or modifying existing equipment, or transferring to an alternative vacant position. An employee with a disability must be provided with the tools and environment to enable him or her to accomplish the job. See How to Handle an Employee's Request for Accommodation.

A reasonable accommodation is one that does not cause the employer undue hardship—that is, it would not be too difficult or too expensive to provide, in light of the employer's size, financial resources and business needs. See How do I know if a work accommodation will create an undue hardship?

The process of developing and implementing accommodations is individualized and should begin with input from the employee. Procedures for requesting an accommodation, and the accommodation itself, must respect the dignity of the individual. For example, a person with a mental health problem who needs a quiet space for breaks during the day should not be required to take the breaks in a trash room or other undesirable space. Rather, it should be space that is suitable for employee use. Employers must keep information about an employee's accommodation and medical condition confidential.

Because discrimination includes workplace harassment and prejudice toward people with disabilities, including mental health problems, accommodation may include activities such as workplace education to issue a clear statement that harassment will not be tolerated and to ensure employees are aware that they can report instances of inappropriate comments or attitudes in the workplace.

See:

Accommodation Ideas for Mental Health Impairments

EEOC's Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act

Accommodation ideas

Following are accommodation suggestions from the U.S. DOL that have been found to help employees with mental health disabilities perform their jobs more effectively. Some workplace changes pertain to work arrangements:

  • Telecommuting, part-time hours, job-sharing, adjustments in the start or end of work hours and granting permission to make up missed time.
  • Sick leave for reasons related to mental health, flexible use of vacation time, additional unpaid or administrative leave for treatment or recovery, leaves of absence or use of occasional leave (a few hours at a time) for therapy and related appointments.
  • Breaks according to individual needs rather than a fixed schedule, more frequent breaks or greater flexibility in scheduling breaks, provision of backup coverage during breaks, and telephone breaks during work hours to call professionals and others needed for support.
  • Permitting beverages and food at workstations, if necessary, to mitigate the side effects of medications.

Other workplace changes pertain to modifications:

  • Reduction or removal of distractions in the work area.
  • Addition of room dividers, partitions or other soundproofing or visual barriers between workspaces to reduce noise or visual distractions.
  • Private offices or private space enclosures.
  • Office/work space location away from noisy machinery.
  • Reduction of workplace noise that can be adjusted (such as telephone volume).
  • Increased natural lighting.
  • Music (with headset) to block out distractions.
  • Tape recorders for recording/reviewing meetings and training sessions.
  • Handheld electronic organizers, software calendars and organizer programs.
  • Remote job coaching, laptop computers, personal digital assistants and office computer access via remote locations.
  • Software, such as pop-up screens, that minimizes computerized distractions.

Other accommodations relate to job duties:

  • Modification or removal of nonessential job duties.
  • Division of large assignments into smaller tasks and goals.
  • Additional assistance or time for orientation activities, training and learning job tasks and new responsibilities.
  • Additional training or modified training materials.

The Job Accommodation Network (JAN), a service of the DOL Office of Disability Employment Policy, has compiled a considerable amount of information on various methods of accommodating employees with psychiatric disabilities. See Accommodation and Compliance Series: Employees with Mental Health Impairments.

Employee Relations Considerations

An individual's disability should not define the person any more than should age, gender, race or other personal characteristics. During the onboarding process, for example, a manager should introduce an employee with a mental health problem just as any other new employee would be introduced. A new employee's disability—if it has been accommodated properly—is irrelevant to the person's function in the workplace. However, persons with disabilities also may need information about accommodation options and how to arrange them with human resources or with their manager.

Performance management and behavior issues

In managing employees with psychiatric disabilities, the DOL suggests:

  • Implementation of flexible and supportive supervision style; positive reinforcement and feedback; adjustments in level of supervision or structure, such as more-frequent meetings to help prioritize tasks; and open communication with supervisors regarding performance and work expectations.
  • Additional forms of communication or written and visual tools, including communication of assignments and instructions in the employee's preferred learning style (written, verbal, e-mail, demonstration), and creation and implementation of written tools such as daily to-do lists, step-by-step checklists, written and verbal instructions, and typed minutes of meetings.
  • Regularly scheduled meetings (weekly or monthly) with employees to discuss workplace issues and productivity, including annual discussions as part of performance appraisals to assess abilities and discuss promotional opportunities.
  • Development of strategies to deal with problems before they arise.
  • Written work agreements that include any agreed-on accommodations, long- and short-term goals, expectations of responsibilities, and consequences of not meeting performance standards.
  • Education of all employees about their right to accommodations.
  • Relevant training for all employees, including co-workers and supervisory staff.

See Maximizing Productivity: Accommodations for Employees with Psychiatric Disabilities.

Severe changes in an employee's behavior, mood or performance may be a reflection of personal difficulties that may be resolved quickly, or they may be signs that the employee is no longer happy in his or her job. Or changes in behavior, mood or job performance—particularly if they continue for an extended period—may indicate mental health problems that go beyond being "stressed out" or having a bad day and that require professional treatment. See Accommodations for Mental Health Conditions Require Discretion, Flexibility.

Employees with mental health disabilities may be disruptive, erratic or have difficulty controlling their emotions. Employers should clarify for all employees the behaviors that are inappropriate in the workplace and the consequences for engaging in those behaviors. When a performance-related problem occurs, it remains a performance issue even if the cause of the problem is related to the employee's disability. It is not discrimination to approach a disabled employee to discuss the issue. See Applying Performance And Conduct Standards To Employees With Disabilities.

If an employee's behavior becomes a workplace problem, talking to the person privately in the context of workplace performance may help determine whether mental health is a factor. Broaching the question of an employee's health in the context of work performance can be a delicate task, especially when mental health problems might be involved. Asking open-ended questions can encourage an employee to request support or accommodation, but it is not the employer's job to probe into an employee' personal life, diagnose a problem or act as the employee's counselor. In addressing performance issues, organizations must be honest, straightforward, professional and caring.

The employer's involvement does not end with one meeting. HR or a supervisor should follow up with the employee regularly. If the employee's performance has not shown any improvement after the designated period, and he or she has not requested accommodation or leave, considering disciplinary action may be appropriate at that point. If the situation is serious enough that termination of employment is imminent, being clear and documenting the meeting as a performance-related issue is important.

Work/life balance

Some employees find that conflicts arise between their roles in the workplace and outside it, leading to strains both on the job and in the home. That strain can lead to serious health problems, including mental health problems. Though not everyone who deals with significant stress develops a mental illness, excessive stress can manifest as depression, anxiety or anger. Ways to reduce workplace stress and improve employees' work/life balance—and thus help prevent the mental health issues that could arise—include reducing workloads, curtailing travel and overtime, and considering alternative work arrangements such as flextime or working at home. All of these are forms of accommodations that may be reasonable for existing mental health conditions as well.

See:

Today's Young Worker Is Stressed Out and Anxious

What should we do when an employee's personal problems affect job performance, mood and behavior at work?

Dealing with co-workers' attitudes

Society's fears and misconceptions about mental health impairments can make their way into workplaces. Ignorance or misinformation about mental illnesses can lead to relatively harmless misunderstandings—or to discrimination, bullying or harassment.

See:

Depression: Start the Conversation to Remove the Stigma

Take Steps Toward Mental Health

Providing confidential and nonthreatening ways for employees to learn about anxiety, stress and depression and about how to seek help is ideal. However, employers have an obligation to respect and protect individual employees' privacy regarding medical conditions.

Creating awareness with employees and educating them is the first step to providing a healthy, supportive and welcoming workplace. Among suggestions for doing so include:

  • Establishing a self-help library of resources on mental health; materials could include online resources, books, tapes and CDs.
  • Providing training for employees on mental health issues to dispel common misconceptions and to help employees identify symptoms and potential warning signs of problems.
  • Enlisting an expert on mental health issues to discuss them with employees.

Workplace Safety Concerns

Most individuals suffering from depression, anxiety or other types of mental health impairments are not violent, but a small minority do pose a risk for potential violence. According to a SHRM survey, over one-third (36 percent) of organizations reported incidents of workplace violence. Compared with two years ago, most organizations indicated that incidents of violence had either stayed about the same (45 percent) or decreased in frequency (40 percent), whereas 15 percent reported an increase in frequency. See SHRM Survey Findings: Workplace Violence.

According to the EEOC, an employer never has to tolerate or excuse violence or threats of violence. 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.  

Employee Benefits

The Mental Health and Addiction Equity Act of 2008 mandates that group health plans provide benefits for mental health- and substance abuse-related disorders. Such benefits must be at least equivalent to benefits offered for medical and surgical procedures. The legislation renews and expands provisions of the Mental Health Parity Act of 1996.

Although the 2008 law requires only financial equity for annual and lifetime mental health benefits, the legislation compels parity in treatment limits and expands all equity provisions to addiction services. Thus, the law requires that the deductibles, co-payments and out-of-pocket expenses applied to mental health and addiction services be no more stringent than those applied to medical and surgical services. It also mandates that limitations on frequency of visits, number of visits and days of coverage for mental health be no more restrictive than those applied to medical and surgical services.

All mental health and addiction disorders listed in the DSM would be subject to the act's parity requirement.

Certain privacy protections required by the Health Insurance Portability and Accountability Act of 1996 (HIPAA) are implemented by the law's medical privacy rule. The rule allows covered entities—employers administering a group health plan—to release personal health information externally and to use the information internally only under limited circumstances. Employee permission is needed when the use of personal health information falls outside the circumstances permitted by the privacy rule. See What are the HIPAA privacy notice requirements for employers that sponsor a group health plan? and Under the HIPAA privacy regulations, do I need to obtain an authorization form from my employees for every situation involving health-related information?

Harassment and Bullying

It is illegal to harass an applicant or employee because he or she has a disability, had a disability in the past, or is believed—whether correctly or incorrectly—to have a physical or mental impairment. Harassment can include offensive remarks about a person's disability.

Although the law does not prohibit simple teasing, offhand comments or isolated incidents that are not serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision such as demotion or firing of the victim. See Harassment (Other Than Sexual Harassment) Training for Supervisors.

Bullying behavior in the workplace has significant and far-reaching consequences. The issue should not be addressed simply as a way to avoid lawsuits or bad publicity. Instead, creating a zero-tolerance policy, providing education and training to the workforce, and establishing processes to deal with instances of workplace bullying are necessary to build a culture of respect that will allow employees to flourish and innovation to thrive.

According to the results of a recent SHRM survey, 51 percent of organizations reported incidents of bullying in their workplaces. The three most common outcomes of bullying incidents that organizations reported were decreased morale, increased stress or depression levels and decreased trust among co-workers. See Bullying, Violence Continue in the Workplace, Survey Finds and SHRM Survey Findings: Workplace Bullying.

Templates and Tools

EEOC: A Technical Assistance Manual on the Employment Provisions of the Americans with Disabilities Act

Mental Health in the Workplace: A Call to Action Proceedings from the Mental Health in the Workplace: Public Health Summit

Office of Disability Employment Policy (ODEP): Mental Health

Agencies and organizations

Equal Employment Opportunity Commission (EEOC)

Job Accommodation Network (JAN)

National Institute of Mental Health (NIMH)

Substance Abuse and Mental Health Services Administration (SAMHSA)

United States Department of Labor, Office of Disability Employment Policy (ODEP)

United States Department of Health and Human Services (HHS)

Endnotes

1American Psychiatric Association. (1994.) Diagnostic and statistical manual of mental disorders (4th ed.). Arlington, VA: Author.

2U.S. Department of Labor, Office of Disability Employment Policy. (n.d.). Maximizing productivity: Accommodations for employees with psychiatric disabilities. Retrieved from http://www.dol.gov/odep/pubs/fact/psychiatric.htm

3Ibid.

4U.S. Employment Opportunities Commission. (2009, March 5). EEOC enforcement guidance on the Americans with Disabilities Act and psychiatric disabilities. Retrieved from https://www.eeoc.gov/policy/docs/psych.html

5Ibid.

6Ibid.

7Ibid.

8U.S. Employment Opportunities Commission. (n.d.). Questions and answers on the final rule implementing the ADA Amendments Act of 2008. Retrieved from https://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm

9Job Accommodation Network. (2013, March 7). Accommodation and compliance series: Employees with intellectual or cognitive disabilities. Retrieved from https://askjan.org/media/intcog.html

10U.S. Department of Labor, Office of Disability Employment Policy. (n.d.). Maximizing productivity: Accommodations for employees with psychiatric disabilities. Retrieved from http://www.dol.gov/odep/pubs/fact/psychiatric.htm

11Ibid.

12Ibid.


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