This is the conclusion of MWorld's two-part series on Mental
Disability in the American Workplace. Click here
for Part 1 of the series.
Since the passage of the Americans with Disabilities Act (ADA)
in 1990, designed to protect the mentally and the physically disabled,
employers have been confused and even alarmed, over how it affects
their ability to deal with mentally impaired employees.
How Must an Employer Accommodate the Mentally Disabled?
The ADA mandates accommodation of disabled employees, even unqualified
ones, if accommodation would enable them to perform the essential
functions of their jobs.
The problem is that accommodation for people with mental disabilities
is usually hard to conceptualize. Unlike accommodations for physical
impairments, which might simply require a mechanical solution, accommodations
to the limitations of cognitively and psychologically impaired persons
require a greater degree of imagination and flexibility on the part
of employers.
Many people with mental disorders, for example, take medications
that make it difficult to awaken easily in the morning or create
drowsiness at other times of the day. Such individuals may need
to regularly attend counseling sessions, or even require periodic
hospitalization. For such individuals, accommodations like part-time
or modified work schedules, use of accrued paid leave, or providing
additional unpaid leave may be in order.
Employees having difficulty coping with the stress of certain job
assignments might be accommodated through job restructuring, partial
at-home work, reassignment, reorganization of work space, or allowance
of periodic work breaks.
The only defense provided by the ADA for failure to provide accommodation
is where it would be an undue hardship for the employer. Usually,
however, courts analyze accommodations to determine whether they
appear reasonable.
What Accommodations Have the Courts Ruled as Unreasonable?
Major job restructuring, placing significant interpersonal burdens
upon co-workers and supervisors, or creating an increase in health
or safety risks
What Accommodations Have the Courts Ruled as Reasonable?
Conclusions
The law governing treatment of the mentally disabled in the workplace
is sufficiently muddled to leave even the most sophisticated employer
mystified as to its legal obligations.
Most mental disability discrimination suits are settled or dismissed.
However the legal fees, expert fees, lost productivity and workplace
disruption entailed in defending litigation can add up to a considerable
expense.
In those cases that go forward, the exposure is substantial. Because
Congress expressly provided for compensatory and punitive damages
under the ADA, all employers must take potential liability for disability
discrimination very seriously.
Even employers with the most progressive human resource policies
are vulnerable to ADA claims. They, like everyone else in our society,
carry culturally embedded negative attitudes and misperceptions
about the mentally impaired. To protect against an ADA claim, an
employer must implement procedures specifically directed towards
ensuring that all potential, reasonable forms of accommodation are
fairly and thoroughly explored.
Stephen J. Cabot is chairman of the Employment Law & Labor
Relations Department of the Philadelphia-based national law firm
of Harvey, Pennington, Herting & Renneisen, LTD. He is the author
of the bestselling book Everybody Wins! Michel Lee is an associate
in the New York office.
