NAVIGATING REASONABLE ACCOMMODATIONS FOR MENTAL HEALTH DISABILITIES Michael J. Spagnola, Esq.

mspagnola@siegeloconnor.com

Hartford Office:150 Trumbull StreetHartford, CT 06103(860) 727-8900

New London Office:14 Eugene O’Neill DriveNew London, CT 06320(860) 442-4747

Background • The National Institute of Mental Health estimates:

• 1 in 5 people will experience a psychiatric disability in their lifetime

• 1 in 4 Americans currently know someone who has a psychiatric disability

• 1 in 17 adults live with a serious mental health impairment such as schizophrenia, major depression or bipolar disorder

• Most employers have at least 1 employee with a psychiatric disability

• U.S. Substance Abuse and Mental Health Services Administration estimates that each year more than 41 million Americans (18% of the population) experience some type of mental illness

ADA – Title I Basics• Prohibits employers from discriminating against

qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment

• Applies to employers with 15 or more employees• Also applies to employment agencies and to labor

organizations

• Requires “reasonable accommodation” for individual with disability if needed in order to perform “essential functions” of a job

CFEPA Basics• Prohibits employers from discriminating in

employment because of the individual’s “present or past history of mental disability, intellectual disability, learning disability….”

• Applies to employers with three or more employees• Case law has determined that it requires employers to

provide “reasonable accommodation” similar to federal ADA requirements

• Note: generally, CT courts rely on federal precedent for guidance in enforcing CFEPA

Analysis

3 step analysis:1. Does the individual have a disability?

2. Is the individual with a disability qualified?

3. Is there a reasonable accommodation that can be made so that the individual with a disability can perform the essential functions of the job?

DOES THE INDIVIDUAL HAVE A DISABILITY?

Statutory Definition

• Mental Impairment under ADA – “any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities”

• CEFPA• Mental Disability: an individual who has a record

of, or is regarded as having one or more mental disorders, as defined in the most recent edition of the American Psychiatric Association's "Diagnostic and Statistical Manual of Mental Disorders”

Definition of Disability

• ADAAA – “definition construed in favor of broad coverage of individuals”

• 3 Types:• Impairment that substantially limits one or more major life activities

• Record of a substantially limiting impairment

• Being regarded as having a substantially limiting impairment

Inquiries About Disability• Before job offer made: Questions about disability and medical

examinations generally prohibited• All applicants may be asked if they require accommodations for application

process• Applicant can be asked to describe/demonstrate how they would perform

specific functions of job• Specific applicants with obvious or known disabilities may be asked if they

will need reasonable accommodation for job if employer has reasonable belief that accommodation will be needed

• After job offer made: Employer may ask about disability and may require medical examination if required of all entering employees in same job category

• During employment: Employer may ask about disability if employer has a reasonable belief based on objective evidence that individual will be unable to perform essential functions due to medical condition or will pose a direct threat due to medical condition

Major Life Activities

• Typically implicated with mental health disabilities• Thinking• Concentrating• Interacting with others• Sleeping• Caring for oneself• Working • Communicating

Substantially Limited• EEOC regulations – “not meant to be a demanding

standard”• Impairment is a disability if individual:

• Unable to perform a major life activity; or• Restricted in the condition, duration or manner under which a major

life activity can be performed as compared to the average person

• Duration must be more than several months• Consider severity• Without regard to “ameliorative effects” of mitigating

measures• Medication, medical supplies, equipment, or appliances• Prosthetics• Hearing aids and other hearing devices• Coping strategies

Episodic/Remission

• Conditions that are episodic or in remission are disabilities if they substantially limit a major life activity when active

• Examples: Bipolar disorder and PTSD

“Record Of” Disabled

• Substantially limited in the past• May be relevant in a case where individual is using a mitigating measure to control the condition

“Regarded As” Disabled

• Impairment is not substantially limiting, but individual is treated as such

• No impairment, but employer treats individual as if they have a substantially limiting impairment

THE CFEPA CONUNDRUM

Diagnostic and Statistical Manual of Mental Disorders in excess of 900 pages; extremely broad in scope. Lists following as mental disorders:

• Oppositional defiant disorder• Intermittent explosive disorder• Pyromania• Kleptomania• Alcohol use disorder• Several drug use disorders• Gambling disorder• Paraphilic disorder

ADA Mental Health Disabilities• Personality Traits Not Covered

• Poor judgment• Chronic lateness• Irritability • Inability to get along with supervisors or co-workers

Documentation

• Employers may obtain reasonable documentation that an employee has a mental disability and needs an accommodation• Employer entitled to no more information than is

necessary to determine that individual has a disability and needs an accommodation

• Employer may require documentation come from a health care professional

IS THE INDIVIDUAL WITH A DISABILITY QUALIFIED?

Qualified Individual

• Employee or applicant meets requisite knowledge, skills, and experience of position and can perform “essential functions” of position with or without reasonable accommodation• Meets basic skill, education, training and job-related

requirements

Essential Functions

• Job function may be considered essential for several reasons, such as:• Job exists to perform that function• Function requires specialized skills or expertise and

person is hired for that expertise• Only limited number of employees to perform

function

Essential Functions

• Evidence that function is essential:• Employer’s judgment• Terms of written position description• Experience of current or past employees• Amount of time spent performing the function• Consequences of not performing the function

Humphrey v. Memorial Hospitals Association (9th Cir. 2001)• Medical transcriptionist with OCD asked to work at home; employer denied request due to employee’s disciplinary record for absenteeism/tardiness prior to diagnosis

• Court: Working from home might be reasonable accommodation• Physical attendance not essential job function• Association allowed telework for other employees

in same position

Bona Fide Occupational Qualification

• Potential defense to claim of facially discriminatory job requirement under CT law• Not a defense under federal law

• Exists when specific characteristic necessary for performance of job

• Example: requiring excellent physical condition, and setting cap on cholesterol levels, may be a permissible requirement for police officers

IS THERE A REASONABLE ACCOMMODATION THAT CAN BE MADE SO THAT QUALIFIED INDIVIDUAL WITH A DISABILITY CAN PERFORM THE ESSENTIAL FUNCTIONS OF THE JOB?

Reasonable Accommodation

• ADA and CFEPA require employers to provide "reasonable accommodations" to qualified employees with disabilities

• Primary consideration to what accommodation to choose should be given to employee’s proposed accommodation, but employer may ultimately choose from among accommodations as long as the one given is effective

Basics• Adjustments to work setting that make it possible for

qualified employees with disabilities to perform essential functions of their jobs• Change in the way things are typically done

• Process of developing and implementing accommodations is individualized and should begin with input from employee

• Accommodations vary and are situation/individual specific

• Accommodations cannot cause undue hardship on operation of employer’s business

Identifying Need• Performance/conduct declines• Employee verbally notifies employer

• “Request for Reasonable Accommodation” form• Individual may use “plain English” and not mention ADA or CFEPA

or even use “reasonable accommodation.” • “I need a day off because I’m depressed and stressed.”• “My antidepressant is making me dizzy and I need a break.”• “My psychotherapist thinks I would benefit from a more flexible working

schedule.”

• Extended absences/illnesses/medical• Communication from employee’s family member or doctor• Employee does not lose the right to request an

accommodation because did not do so during the application stage

Ekstrand v. Sch. Dist. of Somerset (7th Cir. 2009)• Teacher with seasonal affective disorder assigned to noisy classroom

without outside windows; requested quieter room with natural light and better ventilation; school worked to remedy noise distractions and ventilation problem, but did not reassign teacher to room with natural light, despite repeated requests

• Depression and anxiety worsened, requiring medical leave; during leave period, teacher repeated her requests for room switch; doctor provided note to school district indicating importance of natural light for an individual with seasonal affective disorder, and link between teacher's room location and symptoms

• Court: • Prior to doctor’s note, school took accommodating steps to resolve teacher's

concerns; because school had no evidence that natural light was crucial to alleviating symptoms, it acted reasonably and was not required to provide preferred accommodation of room with natural light

• After doctor’s note, school district had notice of importance of natural light, and had obligation to "provide the specifically requested, medically necessary accommodation” absent undue hardship

Miller v. Illinois DOT (7th Cir 2012)• Bridge worker of 5 years suffered panic attack and was

diagnosed with acrophobia (fear of heights); prior to diagnosis, supervisors allowed him to swap tasks among co-workers to avoid occasional task that he could not do; bridge worker requested that other employees substitute for him when a task required working above 25 feet in an exposed or extreme position

• Court: Acrophobia is a disability; where bridge employees routinely shared and swapped tasks, jury could find accommodation request was reasonable• Regarded as disabled claim: After diagnosis, IDOT kept him from

doing any bridge crew work including tasks that could be performed on the ground even though he was cleared to return to work with no significant restrictions; this could support a “regarded as” disabled claim

Interactive Process

• Once a request has been made, employer must engage in interactive process with the individual

• Process will involve determining whether individual has a disability and what accommodations, if any, are possible

Not Required

• Lowering production/performance standards• Excusing violations of conduct rules that are job-related and consistent with business necessity

• Removing an essential function• Monitoring individual’s use of medication• Actions that would cause undue hardship to employer

Typical Examples• Flexible Workplace - Telecommuting and/or working

from home• Scheduling - Part-time work hours, job sharing,

adjustments in start or end of work hours• Leave - Sick leave for reasons related to mental

health, flexible use of vacation time, additional unpaid or administrative leave for treatment or recovery

• Breaks - Breaks according to individual needs rather than a fixed schedule, more frequent breaks and/or greater flexibility in scheduling breaks, telephone breaks during work hours to call professionals and others needed for support

Accommodating Concentration Issues

• Reduce distractions in the work area: • Provide space enclosures, sound absorption panels, or private office• Allow for use of white noise or environmental sound machines• Plan for uninterrupted work time• Purchase organizers to reduce clutter

• Increase natural lighting• Allow flexible work environment• Divide large assignments into smaller tasks and

goals• Restructure job to include only essential functions• Provide memory aids such as schedulers,

organizers, or e-mail applications

Accommodating Attendance Issues

• Allow flexible work environment:• Flexible scheduling• Modified break schedule• Leave for counseling• Work from home

Accommodating Emotional Issues• Encourage use of stress management techniques to

deal with frustration• Allow presence of support animal• Allow telephone calls during work hours to doctors

and others for needed support• Allow flexible breaks • Refer to employee assistance program (EAP)

Accommodating Fatigue Issues

• Allow flexible work environment• Provide goal-oriented workload, not hour-based

• Reduce or eliminate physical exertion and workplace stress

• Implement ergonomic workstation design

Accommodating Memory Issues• Allow use of job coach • Provide mentor• Provide minutes of meetings and trainings• Allow additional training time• Provide written checklists• Use color coding scheme to prioritize tasks• Use notebooks, planners, or sticky notes to record

information• Provide labels or bulletin board cues to assist in

location of items

Undue Hardship• Limitation on employer’s obligation to provide

reasonable accommodation• Significant difficulty or expense and focuses on

resources and circumstances of particular employer in relationship to cost or difficulty of providing specific accommodation

• Not only financial difficulty, but to accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter nature or operation of business

• Assessed on case-by-case basis

Direct Threat• Employer may refuse to employ or provide accommodations to

individual who poses a "direct threat" to health or safety of him/herself or others

• Determination that individual poses direct threat to self or others cannot be made simply based on stereotypical generalizations about mental illness• Must be based on objective evidence from treatment provider or another

credible source that individual’s present condition makes him or her direct threat to self or others

• Hoback v. City of Chattanooga (E.D. Tenn. 2012) – Police officer deployed to Iraq, upon return diagnosed with PTSD. One psychiatric evaluation said “suicidal and dangerous.” Terminated because he “was not psychologically fit to safely perform the duties as a police officer.” Court affirmed jury’s verdict in favor of officer because employer’s “direct threat” determination was not based on objective medical evidence.

OTHER IMPORTANT THOUGHTS TO CONSIDER

Management Training• Flexible and supportive supervision style - positive

reinforcement and feedback and open communication with supervisors regarding performance and work expectations

• Understand and use additional forms of communication geared to employee's preferred learning style (written, verbal, e-mail, demonstration); creation and implementation of written tools such as daily "to-do" lists and step-by-step checklists

• Development of strategies to deal with problems before they arise

• Consider written work agreements that include any agreed upon accommodations, long-term and short-term goals, expectations of responsibilities and consequences of not meeting performance standards

• Relevant training for all employees, including co-workers and supervisory staff

Confidentiality

• Information obtained regarding medical condition or history of applicant must be collected and maintained on separate forms and in separate medical files, except that:• Supervisors and managers may be informed

regarding necessary restrictions on the employee’s duties and necessary accommodations