ADA Compliance with Compassion, Part 1: A Series of Articles on Mental Health & Employment
An overview of the ADA
The National Institute of Mental Health estimates that one in five US adults live with a mental health condition and that one in four Americans currently know someone who has a psychiatric disorder. Nearly half of those with any mental disorder meet the criteria for two or more disorders. It’s estimated that nearly 50% of all Americans will be diagnosed with a mental health illness or disorder at some point in their lifetimes. If you’re an employer with 15 or more employees, chances are, you have at least one employee with a mental health disability who may be entitled to protections afforded by the Americans with Disabilities Act (“ADA”).
The ADA requires employers to provide reasonable accommodation to qualified individuals with a disability who are employees (or applicants), unless doing so would cause on undue hardship. Sounds simple enough, right? In theory, maybe. In practice, far from it. In fact, over 30% of the charges filed with the EEOC in 2017 involved allegations of disability discrimination. The ADA is a complex piece of legislation and mental health issues are still widely stigmatized and misunderstood. Combined, the conditions are ripe for the perfect storm, and employers must batten down the proverbial compliance hatches in 2019. Over the next month, we’ll be sharing a series of articles with you on mental health and the ADA.
As an employer, you want to ensure your employees have all the tools necessary to do their jobs effectively- when your team is effective, your customers are happy, and your business is more profitable.
Mental health is, in and of itself, an epidemic, but it’s also a key underlying factor of many other crises being faced by American communities today, such as addiction, suicide, and homelessness. Mental health disorders are still widely stigmatized and misunderstood, which discourages the type of open and honest dialogue needed to dispel of stereotypes. Many employees are hesitant to seek the accommodation they need for fear that disclosing their illness will lead to a negative perception of them. As an employer, you want to ensure your employees have all the tools necessary to do their jobs effectively - when your team is effective, your customers are happy, and your business is more profitable. An accommodation is a tool, not just a legal obligation. But how do you provide an effective accommodation for an invisible illness? What are your obligations under the ADA?
ADA Accommodations “Basics”
An accommodation is a change in the work environment, or in the way things are usually done, to remove barriers or obstacles for an individual with a disability that will enable to individual to do their job despite having a disability. The ADA defines a person with a disability as someone who has a physical or mental impairment that substantially limits one or more major life activity”. The ADA also provides protections for individuals who have a history of such a disability, even if not currently suffering from said disability, and individuals who the employer believes have a disability, even if they don’t. Let’s start with some definitions:
Qualified individual: The ADA only provides protections for qualified individuals – this means the person must be able to meet the requirements for the job, like education, experience, or licenses, and the person must be able to perform the essential functions of the role, with or without a reasonable accommodation.
Essential functions: These are the fundamental duties of the role. Without these functions, the role would cease to exist or would look like a substantially different role. An employer cannot refuse to hire someone just because their disability prevents them from performing duties that are not essential to the job. For example, a receptionist’s essential functions may include answering the phone and checking patients out; carrying boxes of printer paper from the supply room is likely not an essential function of the role as eliminating that duty as ancillary wouldn’t fundamentally change the nature of the role.
Undue hardship: This means that an accommodation would be unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature of the business. Factors for consideration include the cost of the accommodation, the size of the employer, and the financial resources, the nature, and the structure of the company’s operations. We’ll discuss undue hardship in more detail later; for now, just keep in mind that (1) the employer has the burden of proving an accommodation would create an undue hardship, and (2) even if an employer can show an accommodation would create an undue hardship, the employer may still be required to implement an alternative accommodation.
The ADA does not require employers to hire unqualified individuals, interfere with an employer’s right to hire the best qualified individual for the job, or impose any affirmative action obligations; it simply prohibits employers from discriminating against a qualified applicant or employee because of their disability. Further, the ADA does not require an employer to lower performance standards or tolerate poor performance; it requires the employer make a reasonable accommodation as to how, when, or where work is performed, or other modifications to conditions of employment, for an individual with a disability if an accommodation would enable them to perform the job and meet the same performance standards as a similarly situated employee without a disability.
Now that we’ve laid out the groundwork, join us next week as we continue our ADA and mental health series throughout the month of March. Here’s a sneak peek of the topics we’ll be covering:
The interactive accommodations process and types of accommodations
Establishing a process for requesting an accommodation
Identifying essential job functions;
Determining undue hardship;
Managing performance or attendance for individuals with accommodations.
If you have any questions regarding ADA compliance issues, please feel free to contact Columbus, OH attorney, Chisa Chervernick.