Mental health is highly stigmatized, but many mental health conditions qualify as disabilities under the Americans with Disabilities Act. People with psychiatric conditions often have a right to reasonable accommodations in the workplace, just like people with more visible disabilities. What kind of accommodations could help employees with mental health conditions? This edition of Ask About the ADA is a webinar archive reviewing employer responsibilities and the rights of employees with psychiatric disabilities.
Watch more archived webinars from the Northeast ADA.
NortheastADA.org
Mental health is highly stigmatized, but many mental health conditions qualify as disabilities under the Americans with Disabilities Act. People with psychiatric conditions often have a right to reasonable accommodations in the workplace, just like people with more visible disabilities. What kind of accommodations could help employees with mental health conditions? This edition of Ask About the ADA is a webinar archive reviewing employer responsibilities and the rights of employees with psychiatric disabilities.
Watch more archived webinars from the Northeast ADA.
NortheastADA.org
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JOE ZESSKI: Hello and welcome to Ask About the ADA, the podcast where we answer your questions about the Americans with Disabilities Act and how it applies to your everyday life. On this edition of Ask About the ADA, we’re going to replay for you one of our past webinars from the Northeast ADA Center. This one focuses on a topic that can often be overlooked and not addressed as much as it should be. The topic was mental health conditions and reasonable accommodations in the workplace. Certainly, in general, there is a lot of stigma around mental health conditions that we are still dealing with and trying to overcome. And for people who have different psychiatric disabilities, it can often be a barrier in the workplace in a number of different ways. In this webinar, we’re going to look at the rights of employees with mental health conditions as well as some examples of potential reasonable accommodations that people with mental health conditions might need. I hope you’ll find this interesting and informative.
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MICHELLE ALVORD: And without further ado let me turn things over to our presenter for the day, Joe Zesski.
JOE ZESSKI: Thank you, Michelle. And thank you, everyone, for joining us today. Again, this webinar is Mental Health Conditions and Reasonable Accommodation in the Workplace. And this webinar is going to focus on an important topic, the issue of mental health related conditions and psychiatric conditions as disabilities under the ADA and how that impacts the environment in ‑‑ the work environment for employees with disabilities. First let me introduce myself. I'm the program manager here at the Northeast ADA Center. My name is Joe Zesski and I'm glad you're with us today. As we go along, please feel free to leave questions in the chat box. As I'll mention in a few moments we are going to try to get through a lot of information today.
I just want to give a quick recap of what we are going to talk about today. I mentioned when I first started that there was going to be a lot of information covered and that certainly is true. We are going to start by going over the framework and the background information I'm going to talk with you about the part of the law that deals with employment in particular, Title I. And we are going to talk about defining disability. Those that have joined our webinars before know we often cover that information. And we tend to always incorporate that because it's important to keep in mind that the ADA has its own specific definition of disability.
And psychiatric conditions or mental health conditions certainly can fall under that definition of disability. And so since we are going to talk about accommodations in the workplace, we'll go over the definition of disability and we'll ‑‑ then follow up with conversation about the reasonable accommodation process itself. And then we will go into some specific examples of accommodations or potential accommodations for people with various types of mental health conditions in the workplace. And then we will round down our conversation with a few comments about what is or is not reasonable in terms of a reasonable accommodation on the job. As I mentioned quite a bit to get to. Let's start by looking at Title I.
And, of course, Title I is the first of the five titles of the ADA that covers private employers with 15 or more employees as well as all joint labor organization, unions, and mostly almost all private entities related to employment. The ADA of course, as a law, does not cover federal employees.
So those individuals who work for the federal government are protected by other laws under the rehabilitation act of 1973 but we are going to focus upon the ADA. So today we are talking about private employers and/or state and local government employers.
Now, with Title I there are a few broad things to keep in mind. Obviously, someone cannot be discriminated against if they have a disability. And as with the intent of the ADA, the idea and the focus should be on equal opportunity and equal access. The ADA isn't designed to create a preferential category. It's intended, rather, to be a civil rights law to provide equality and that has to be kept in mind as you think through the different parts of reasonable accommodation in the workplace. Regardless of the type of disability that's in question.
The Title I provision also set up some other key broadly defined protections. Of course, the one that we are focusing on today mostly will be reasonable accommodation. The right to change or adjust in the workplace to allow a person with a disability to have an equal opportunity to perform their essential job tasks or functions will come back to this idea later on as we go forward.
And also Title I limits the inquiries that can be made regarding someone's disability as an employee.
As we'll touch on later on, again, disability inquiries are extremely limited in terms of what an employer has the right to ask about. Because there is a right to privacy and an individual with a disability has the right to disclose their disability or not, depending if they want a reasonable accommodation. So the employer is prohibited in most, not 100% but in most circumstances from ‑‑ refraining from asking about disability.
That all being said, let's look at the definition of disability. And again, this is taken straight from the ADA itself. It has three major parts or prongs that make up the definition of disability. A physical or mental impairment that substantially limits a major life active. A history of such an impairment or someone being regarded as having such an impairment. We are going to breakdown some of these different clauses and key phrases as we go along. But for now the important thing to keep in mind is that there are three different parts to this definition. Someone having an impairment, a record of, or being regarded as.
And some of you may be wondering, well, we sometimes get questions here at the Northeast ADA Center whether or not a psychiatric condition or mental health condition is a disability. And the answer is it may well be. If it meets this definition of disability. And let's see some examples of different types of disabilities.
So these are all mental health related conditions that either appear specifically as potential disabilities in EEOC the equal employment opportunity commission's guidance regarding Title I or are cited in various documents from different federal agencies. This isn't an exhaustive list but it is one that provides illustrations.
So some of the conditions that we see here in case some people may have difficulty viewing the screen, we have a list of conditions like anxiety disorder or panic disorder, obsessive compulsive disorder, bipolar, depression, posttraumatic stress disorder, personality disorders. These are all examples of potential types of mental health conditions that could be considered a disability, again, depending how it impacts a person and depending on since we are focused on the workplace today how it might impact a person's ability to do their job and their essential job functions in an effective way.
Now, as I mentioned, this was an illustrative list, a list of examples. There are conditions under the ADA that are specifically excluded from being considered a disability. They are conditions such as pyromania or kleptomania, compulsive gambling disorder. Current illegal use of drugs is a webinar training unto itself. The use of illegal drugs related to the ADA. But that's not our focus today. However, current illegal use of drugs is not considered to be a disability. Again, keep in mind the ADA was passed in 1990 so you also have listing of other conditions that are regarded probably quite differently than where they were back when the ADA was written. Gender identity disorder is not considered a disability. Notably though while it's not a protected issue under the American's with Disabilities Act there are protections for related issues under Title VII covered by the equal employment opportunity commission.
The final example, if you will, that we have here is what you might call behaviors or traits. So often we may hear from employers about questions regarding do we have to accommodate someone? And the issues that the employer might cite are going to be things around an employee showing up late or perhaps an employee who basically is difficult to work with. Oh, are these things we to have accommodate? The answer is no. Irritability is not a disability. Chronic lateness, stress, is not a disability. With that being said it's important to keep in mind irritability could come as a result of a covered disability or a chronic lateness can be caused by someone who has a condition that makes it difficult for them physically to get moving in the morning, quote unquote. So there may be related disabilities underlying these traits or behaviors and that's something that an employer certainly should explore. But the conduct itself, the behavior itself is not considered a disability and protected so be aware if you're on the employer side or if you're someone who is supporting people seeking jobs who have disabilities, that it's important to keep in mind that fine distinction between a disability and maybe how it may potentially manifest for the person. But always employers have the right to have a rule of conduct that's consistent with business necessity so something to be aware of.
We went through some examples here of mental health conditions and what are not considered mental health conditions under the ADA. Let's further dig into this definition of disability a little bit and what we will look at next is trying to understand substantially limit. That part of the definition of disability is another one where people often get a little bit mixed up and confused, how you determine whether or not someone's disability impacts them in a way that's, quote, unquote, substantial. The answer is there is no short simple answer. In big picture terms you have to look at how the disability or potential disability impacts someone. Does it really limit a major life activity? Perhaps someone has a condition that impacts their memory, maybe they have a traumatic brain function ‑‑ traumatic brain injury and it impacts their ability to remember things.
Well, that memory is certainly a major life activity and you have to look at is this person's memory impacted compared to someone in the quote, unquote, average person. For those of you who are watching the webinar, you'll see on the slide that the word average person is in quotes and that's because it's taken from some of the guiding language. This is always a very sensitive issue regarding disabilities in terms of what is quote unquote normal or quote unquote average. Be aware this is sort of taken from some of the explanatory materials which is why we use the word average.
So substantially limiting, you have to look at the individual, how their disability affects them. You have to consider the fact of how the disability affects a person when they have no mitigating measures. Mitigating measures are tools or strategies that reduce or ameliorate is the more technical language, the impact of a disability. So, for example, if someone has diabetes but perhaps they're on medication and their blood sugar is very well controlled, their medication is a mitigating measure. It lessens the effect of their disability. When you're trying to decide if someone is substantially limited though, you have to look at the person as if they don't have that extra tool or adaptation that allows them to manage their disability.
Also lastly, important to note that substantially limiting generally has to last for several months. And so this is where you get questions around, well, if someone broke their arm are they considered to have a disability? Generally, the answer is going to be no because in general broken limb is expected to heal in a matter of weeks and then the person should have full function of that limb. However, again, you always have to look at a case‑by‑case basis but again this is general guidance.
And this is about the history of a disability. Someone who has a record of a disability has had a disability in the past, they may be not currently impacted by their disability. For example, someone may have cancer that is in remission or someone may have had depression in the past. However, with their treatment currently it's not affecting them. That person has a record of a disability.
Let's look at the third clause of the definition regarded as having such an impairment.
So with regard as that clause refers to how other people perceive and treat the individual. It's really about the attitude of others. A person may not actually have a condition that's limiting them in anyway, but their employer or others treat them in a way as if it does. That whatever condition is at question does treat them in a negative way.
And certainly, we know that stigma is unfortunately very large and real issue for people with mental health conditions. There was a study in 2015 and it was a nation‑wide study on the sigma of mental illness in the labor market. And this study found that 45.6% of job candidates with mental health conditions were twice as likely not to receive a call back as those job candidates who had disclosed a physical disability or injury.
And, again, stigma is such a large issue around mental health that it's something that we really are grappling with in terms of the nation and how people who happen to have this particular type of disability are treated in the work force.
According to a 2019 study by the Substance Abuse and Mental Health Services Administration, about how many Americans experience a mental health issue? That study found that about a tick over 20%, 26% have Americans experienced a mental health condition or issue with about 5.6% experiencing a serious mental health condition. So obviously it's one of the most prevalent types of disability even though people often overlook it as being a form of disability whether they think well I'm just going through a down period, they may well be wrestling with depression; or someone may be dealing with post-traumatic stress disorder. Mental health conditions tend to be overlooked by employers. When we get to the end of today's webinar I'll share resources to find more tools. If you're here joining us today you'll be interested in them.
So keeping that in mind, let's start to turn towards the reasonable accommodation process. And here it's important to keep in mind one quick thing. A job candidate does have to be qualified for the position that they're going for. In other words, the person has to have the requisite skills or knowledge or background in order to do the job. And what its minor essential responsibilities call for. In other words, they have to be able to perform the essential job functions. That's the language that you'll typically hear around the ADA in Title I as someone being able to perform their essential job functions.
So assuming a person is qualified they may need a reasonable accommodation. Let's go to that slide next.
This is just a simple explanation of what a reasonable accommodation is. And we are going to dig into this a little bit more the process. But in essence it's a change. It's doing things a little bit differently in the workplace or making an environmental change in the workplace that will allow a person who has a disability to do the essential parts of their job.
Now, when we are talking about mental health conditions or psychiatric disabilities, we may be talking more about policy modifications but there are also physical environmental changes that someone's disability might require. Perhaps someone has seasonal effective disorder and they are ‑‑ their ability to focus, their ability to work, is going to be severely impacted in the winter season when there's less natural light so they may need full spectrum lighting in their workplace, for example. So while many of the changes we will talk about are going to be policy‑focused or sort of method‑focused, be aware there are physical changes that could be types of accommodations, as well, for someone with mental health related condition. Also, keep in mind that a reasonable accommodation can happen and be requested at any point in the employment process. Whether someone is just starting, someone is applying, someone is in the middle of the hiring process or they're employed for one year, five years, ten years, whatever the case may be, there's always that right to a reasonable accommodation if you're someone with a disability who needs an accommodation to be able to do your essential job functions. So let's look here at the request itself. How does someone go about making a request for reasonable accommodation?
There is no simple or ‑‑ there is no structured way it has to be done. Certainly, a lot of companies will have a process in place where someone has to reach out to human resources or perhaps someone needs to contact a supervisor, and that is typically the way it's done. But under the ADA there is no requirement for a specific form. There's no special language that needs to be used. It doesn't even ‑‑ to be regarded as a reasonable accommodation request it doesn't even need to be considered ‑‑ doesn't even need to be in writing in order to be considered an accommodation request. An employer is on notice once a supervisor, once human resources, has received a request that someone is engaging in the reasonable accommodation process and the employer needs to begin investigating that.
Keep in mind, too, while typically reasonable accommodation requests are going to come from the individual with a disability, they don't necessarily have to. It is possible that a third‑party, a family member, or perhaps medical physician might make a reasonable accommodation request on behalf of a person. Perhaps someone is being hospitalized for are treatment, they're not able to make a request. A family member, a spouse, or perhaps a medical treating medical physician might make a request on behalf of a person.
But what about timing? Let's look at that next. With timing it's an issue of really any time, you know, as I mentioned the reasonable accommodation request can happen at any point from recruitment all the way through hiring and being on the job itself.
Just because someone is ‑‑ let's say someone has been with a company for five years. And perhaps there's someone who has depression. And they have managed it so far over the first five years. And have chosen not to disclose to the company that they have depression. But maybe they're going through a particular difficult period and now they decide to share with the employer that I have depression and I may need some time off to seek treatment for it.
The person hasn't been quote unquote deceiving the employer. And it's something some employers do either feel or worry about. But, in fact, in truth, under the ADA there's no obligation for someone to disclose their disability unless they're requesting an accommodation. So someone doesn't lose the right to make a reasonable accommodation request if they didn't tell the employer when they got hired they have a disability. Again, it can happen at any time. And reasonable accommodation request can happen more than once. Perhaps someone's disability changes or perhaps some other aspect of the ‑‑ of their condition pops up which is making another part of their job more difficult and they need an accommodation to be able to do that. So keep that in mind as well. Someone can make more than one reasonable accommodation request if they want to.
Let's look at the process itself next. With reasonable accommodation, possibly someone has to begin by making requests. It doesn't have to include the word disability. Someone who is an employee doesn't have to say to their supervisor I have a disability and I need a adjusted schedule while I get used to new medication. Someone is not going to be likely to use that type of language. It's not expected under the ADA and its regulations that an employee necessarily has to or would. They just have to let the employer know that they have a need because of a condition for a reasonable accommodation.
So once we have the request in, it begins an interactive process. It's really a conversation back and forth between the employer and the employee about what the employee's disability is, how it impacts them in terms of the job. And what accommodation are they looking to get? And the employer has the right as part of that process to get documentation which I'll touch on in just a moment in order to determine that yes, the employee does have a disability and it effects them in this way.
The employee, for their part, they don't have to but as someone providing ‑‑ who is providing technical assistance in the past I recommend they have some ideas about potential accommodations options that they can share as part of the process. And there are a lot of resources out there such as the ADA centers, such as the Northeast ADA Center or the job accommodation network where someone with a disability with get ideas about ways their disability may be accommodated as related to what their job is and what functions and tasks they have to perform.
And this touches more on documentation. Just be aware that in terms of documentation an employer can ask for it from a professional. They could ask someone to also see their own doctor. But they ‑‑ if an employer chooses to do that they must bear the cost of the visit and any related testing. In terms of how much documentation, it has to meet what the employer needs. It has to verify that this person does indeed have a disability. And this is how it impacts them.
That being said, it's not ‑‑ the requirement for documentation is not a right to a fishing expedition, if you will. When an employer is getting documentation, they don't necessarily have access to a person's entire medical history. They have to focus their request for information to verifying whether or not the person has a disability and to what impact it causes for the person. In other words, what degree is someone going to be affected?
The employer does not have a right to know all medical information or any information that's really not relevant or necessary to the accommodation request itself. So, again, documentation should be specific and focused on what the person's disability is. And with mental health this can be very important. Someone may have multiple mental health conditions. But if they're only making a request based on their treatment for their depression, and adjust the schedule while they adjust to new medications, the employer doesn't have a right to know about other conditions that they have but aren't relevant to the accommodation request itself. So, again, it has to be very specific.
As the process moves forward, the employee needs to have input into what is an accommodation. However, ultimately the responsibility for deciding the accommodation goes to the employer. And they have the ultimate right to decide what an accommodation is.
And I mentioned a few minutes ago that a lot of times people associate mental health conditions with changes in policies or procedures. And that's true but they are also changes in the physical environment. And we are going to go through a couple of slides now that show some different examples of potential accommodations, someone with a mental health condition might need or request. We will go to this first one here.
As you see, it's really a variety. On this slide we have different options that do focus on maybe changing policies or the way things are typically done. So perhaps adjusting job tasks to eliminate non‑essential, non‑essential job functions. In other words, restructuring the way a job is done somewhat in order to accommodate a person's need. That's a possibility. You've heard me refer to adjusting work schedules. That's certainly one of the common types of accommodation requests that people both with psychiatric disabilities as well as other types of disabilities often make and request.
Further, but you also see on this slide other types of accommodation ideas. For example, perhaps someone needs support in learning their position or adapting to changes in the work environment and perhaps they work with a vocational rehabilitation agency and that person may have a job coach. Certainly, that could be a type of an accommodation. And it's one that I know the EEOC, equal employment opportunity commission, has often litigated in the past the right to a job coach on the work site, if necessary. Of course, in today's virtual environment with COVID and everything else, sometimes job coaches might be there remotely. And, again, that is a position accommodation that can be negotiated and worked out with an employer.
Telework is another position form of accommodation that is very popular right now. Many people are requesting it for various reasons but certainly someone's mental health may require. Someone may be able to do their job much for effectively if they have that as an accommodation. Again, these are changes in the way policies are done, procedures. And we will bring that up. Often with mental health conditions someone might need a strategy for dealing with a highly stressful situation. And perhaps for them speaking to a counselor who they have a relationship with can help them deescalate a situation that may be highly stressful or that is leading to anxiety for that person.
So an employer could look at perhaps allowing the person to ‑‑ the employee to make a call to a professional to get that extra support that they may need. So they get that positive reinforcement to deal with a difficult situation that is aggravating their disability. Of course, leave, you heard me mention before as a possible form of accommodation. Someone may need to take a short leave to deal with treatment or to go into a treatment program. So another way that people can often be accommodated.
Now, interestingly, another type of accommodation can relate to how someone is supervised. It's important to keep in mind that the EEOC has not recognized requesting a different supervisor as a form of accommodation. That being said, however, requesting a different supervisory approach is something that is regarded as a potential form of accommodation.
So perhaps a person who has a particular mental health condition needs to receive feedback in a particular way, perhaps they need not only verbally but they need it written or perhaps they don't need it only written but also given to them verbally. They may also require some ‑‑ when they have positive performance, that positive feedback in order to assist them perform at their best, those are adaptations, changes, to the way someone might need to be supervised.
So again there's no right to quote unquote to request a different supervisor; however, how they go about that relationship can be subject to reasonable accommodation. Note, too, the last one here on this slide permitting food or drinks. Again, that's something that ‑‑ sometimes you would see it with people who have physical conditions such as diabetes, they might need to make a request to have food or drink in their work area because of their blood sugar. The same can be true for people who have psychiatric disabilities who may be taken medication as part of their treatment plan. They ‑‑ side effects of the medication may impact them causing them to be thirsty or eat at a certain time so it might be a possible policy change that employer would have to look at in order to accommodate a person.
We have one more example slide. Let's go to that. And here are different types ‑‑ further different types. Often more environmental ones, regarding accommodations. A lot of the ones I've talked about in the last couple minutes have been policy or procedure modifications. Here are changes to the physical environment itself. And depending on someone's condition, distractions in the work environment, extra noise, perhaps bright lights, different factors, people coming and going, these could be distractions which because of their disability really impact their ability to focus to do their job.
So in those cases you might ‑‑ an employer might need to create work spaces where there's going to be less distractions. You know, perhaps they're in work areas that are a little less trafficked than some other areas of the work environment. Or perhaps the person just needs their own private space and where typically that wouldn't be offered for a similarly‑situated employee, it might be something needed in this case to accommodate a person.
Now, keep in mind as we'll talk about in just a few moments, there are limits to what is reasonable. So if you're talking about someone working on a factory line obviously is going to be difficult to create a private work space in that environment. There are limitations to what is reasonable but we will get to that in a moment. Just because something is not usual doesn't mean that it is not possible. You heard me mention the example of lighting earlier. Often that can be a condition for people with particular types of mental health conditions. Noise, we talked about before as well in terms of distractions but also someone may need white noise in the background in order to focus and relieve some of the effects of their disability.
And then there are things such as additional time because someone's disability may impact their capacity to process information. They may need additional time in terms of training or orientation to pick up on procedures or to learn a process. So providing that space and that time is yet one more form of accommodation.
I talked about in the prior list of examples how just because something is maybe not done in typically for a person, doesn't mean it's out of the box unreasonable. And I wanted to highlight in fact what is considered or often is focused as not being considered reasonable in reasonable accommodations. And first of all, changing expectations in terms of performance is not considered reasonable to adjust those. So a person qualified for a position regardless if they have a disability or not needs to be able to produce. They have to be able to provide a certain level of output that's expected. Again, uniformly of other employees in a similarly‑situated place.
So if someone has a disability, there's no need to lower expectations in terms of productivity.
Also, excusing conduct that's violent or that perhaps goes against company rules. As long as those conduct policies are consistent and related to business necessity an employer can expect behavioral conduct to be met. In terms of that aspect, policies do have to be applied uniformly. In other words, policies have to be applied to everyone. So if there's a conduct rule about lateness and how chronic lateness is dealt with, then if someone is late perhaps it's because of their disability but maybe they haven't disclosed it yet. It doesn't mean once the employee is found to be late then they disclose, it doesn't mean retroactively they sort of have that strike removed against them but going forward the person does have the right to an accommodation. However, expectations, again, need to be maintained whether an ploy yes has a disability or doesn't have a disability, whatever time that might be. Another part of what is not considered reasonable, employers are not expected to monitor or administer medication. So be aware that an individual does need to be able to manage their own self‑care in terms of their treatment and what they need to be able to do.
And finally, the undue hardship. For those who are familiar with the ADA and Title I in particular, I'm sure in the past you've heard that any employer doesn't need to provide a reasonable accommodation that would cause an undue hardship which can either be significant difficulty or expense. Significant difficulty refers to the impact on the overall operation of an employer and what is or is not reasonable given the different parameters of an employer, their size, what they do, the tasks of a specific job.
So, again, undue hardship is there as a reason for an employer to deny an accommodation request. Whether it be for mental health or otherwise.
This is something we often hardy here at the Northeast ADA Center when we work directly with employers doing a training and we get questions about direct threat. Direct threat meaning significant risk are of harm to an employee who has a psychiatric disability or others. And honestly this gets back into a much larger conversation about stigma and how there's so much misunderstanding, when in fact people with psychiatric disabilities are no more likely to be violent in the workplace than any other employee but still there's a lot of misconceptions out there.
And this is something to be aware of in terms of the ADA. If a person's disability does cause a direct threat, an employer first needs to look at can this threat be eliminated through some form of reasonable accommodation. Can things be done differently that would reduce a risk if someone is in fact quote unquote a direct threat?
Keeping in mind, just because someone has a disability doesn't mean they're a direct threat. Every situation needs to be looked at in individually on a case by case basis. An employer has to look at the objective evidence and the fact‑based evidence regarding a specific person and their specific situation. And this really gets to the issue of stigma versus legitimate direct threat. Employers can easily fall into a trap of thinking, well, someone has X condition, someone has PTSD, they might be more likely to become violent or something. You still have a lot of misconceptions regarding things such as that which aren't based in reality. So the guidance from the ADA is very specific here from the EEOC, equal employment opportunity commission, I should say. That if as an employer claiming a direct threat is a reason why you can't accommodate an employee with a disability you have to make sure it's based on legitimate facts and evidence, not on suppositions and assumptions.
And with the issue of stigma and misperceptions regarding psychiatric disabilities and mental health conditions, a lot of the issues from the employee side about disclosing come about because of ‑‑ can come about or involve a fear of how other people will treat them if they decide whether or not to disclose. And there is no right or wrong answer in terms of should someone disclose that they have a disability or not? Again, under the ADA there's no obligation to disclose that you have a disability as an employee unless you need a reasonable accommodation request. And with mental health conditions and stigma, people make their own judgments about when or really have to make their own judgments about when and where they feel it's most appropriate and what they're comfortable with. But if someone does decide to disclose disability because they need an accommodation, there's key things to keep in mind. An employer is under an obligation to keep it confidential and on a need‑to‑know basis. The fact that someone has OCD shouldn't be shared with co‑workers, colleagues, other people, or whatever disability someone may have. It needs to be treated as confidential and private.
So who should know about someone's disability or who can be informed about someone having a disability besides the employee themselves? Well, obviously any supervisor or manager where they need to know that someone has an accommodation, they would be entitled or they would ‑‑ they could be told about someone's condition. And again, advice to keep the information strictly confidential. Other people that can be informed is anyone involved in the decision‑making process itself. That could be in some organization’s human resources. In smaller organizations particular individuals designated to request accommodations. They must also keep the information strictly confidential and private.
Then there are obviously some circumstances not related to other employees where it might be appropriate such as case of an emergency treatment that may come up on the work site or for workers comp insurance if it proves necessary at some point. Obviously then it would be okay to share that information to support someone there. But in general, the information has to be kept strictly confidential. As with other disability requests, any information regarding an accommodation request needs to be kept in a separate file from the personnel file all to help protect the confidentiality of a person disclosing a disability and trying to create an environment where someone feels safe that if they do disclose and they want to keep it private, it won't become news for co‑workers and colleagues.
Lastly there's one last point I do want to touch on. And that is the idea of when do requests not have to be accepted? And obviously if a person is actually going to cause a legitimate direct threat on a fact‑based evidence where the threat can't be eliminated or reduced sufficiently with a reasonable accommodation, that person is not going to be considered qualified to do the essential job functions anymore. And at that point if an employer is made a good‑faith effort, done a true individual assessment, then it would be permitted for them to consider the person not qualified for the job. But again, these are very difficult decisions that have to be reached on an evidence‑based process.
Again, I've covered a large range of information. But here are some further resources that might be of help. If you're interested in this topic, in this area, the employer assistance resource network, EARN, has a very good mental health toolkit. You'll see a link in the slides. The National Alliance on Mental Illness has statistics related to mental health conditions. The Office for Disability Employment Policy has a good series or pamphlet on the potential accommodations for employees with psychiatric disability also. The EEOC has enforcement guidance on the topic as well. The Job Accommodation Network have really good materials. And www.mentalhealth.gov is a good place to find out more about individuals who have psychiatric or mental health disabilities.
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JOE ZESSKI: And that was the October 28th webinar from the Northeast ADA, Mental Health Conditions and Reasonable Accommodations in the Workplace. I hope you found it interesting, and if you have questions about anything we talked about during the webinar or any other issues or concerns about mental health conditions related to the Americans with Disabilities Act and peoples’ rights, please feel free to contact us here at the Northeast ADA. You can call us as always at 1-800-949-4232, email us at northeastada@cornell.edu, or visit our website at www.northeastada.org. And of course, you can also look for @NortheastADA on all of your social media platforms. Thank you again for listening, and let’s continue the conversation together.
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