The Americans with Disabilities Act (ADA) is a federal law that protects people with disabilities from employment discrimination. Employers with at least 15 employees are prohibited from discriminating against applicants or employees with disabilities as to any part of the employment relationship, from hiring to firing and everything in between, including pay, benefits, job assignments, discipline, and more. The ADA also requires employers to provide reasonable accommodations to help employees with disabilities do their jobs, unless it would be an undue hardship for the employer.
Some disabilities are obvious, such as blindness, deafness, or a physical injury that requires someone to use a wheelchair. However, a disability does not have to be obvious to be protected. Mental and psychiatric disabilities, which may not be immediately apparent, are also protected by the ADA. This article explains what qualifies as a mental disability, how employers might learn about an employee’s mental disability, and what steps employers should take in response.
Under the ADA, a disability is a physical or mental impairment that substantially limits a major life activity or major bodily function. Mental impairments include psychological disorders and mental illnesses, such as bipolar disorder, schizophrenia, major depression, anxiety disorders, obsessive-compulsive disorder, post-traumatic stress disorder (PTSD), and personality disorders. Intellectual disabilities (the preferred term for what used to be called mental retardation) are also included within the definition of a mental impairment.
The ADA does not include a definitive list of conditions that will always be considered disabilities. Instead, it requires employers to focus on the effect of the condition. Does the impairment limit at least one of the employee’s major life activities or major bodily functions? If so, it is a disability.
Practically speaking, however, the disorders described above will almost always count as disabilities. Many affect the ability to think, learn, concentrate, sleep, communicate, or care for oneself, which are all major life activities recognized under the ADA. What’s more, psychiatric and mental impairments are frequently defined, in part, by disordered brain function, which is a major life activity under the ADA.
In determining whether a particular impairment is a disability, the law does not consider mitigating measures: medication, therapy, or other steps the employee takes to help manage and control symptoms. For example, an employee who has his or her bipolar disorder under control with medication is still considered to have a disability. And, when Congress amended the ADA in 2008, it expressly instructed employers (and courts) to err on the side of inclusion in determining whether particular conditions are disabling, rather than defining the term narrowly to exclude employees. As a result, the safest strategy is to assume that an employee who informs you of a mental or psychiatric disorder is protected by the law.
Despite this broad coverage, however, not every employee who complains of mental impairment has a disability under the ADA. For example, an employee with a major anxiety disorder may have significant difficulty concentrating at work, due to frequent, intrusive fears about his or her loved ones coming to harm. This employee likely has a disability and is entitled to a reasonable accommodation, unless it would cause undue hardship to the employer. On the other hand, an employee who occasionally feels stressed out about flying or public speaking, but is otherwise functional and clear-thinking, probably would not qualify as having a disability under the ADA. These fears are shared by much of the population and don’t signify a serious limitation in major life activities.
Because mental disabilities are often hidden (or at least not obvious), you won’t necessarily know that an employee has a mental disability. The ADA doesn’t require employers to guess that an employee might have a mental disability or need an accommodation. In fact, treating an employee as if he or she had a disability, when the employee in fact does not, is itself a violation of the ADA. Your obligation to accommodate an employee is triggered only when you are put on notice that the employee has a disability.
An employee might choose to keep a disability private. If, for example, an employee is successfully controlling his or her bipolar disorder through medication and therapy, the employee might feel no need to notify anyone at work about her condition. Typically, employees reveal their disabilities when they want a reasonable accommodation. This might come up in the context of discipline or workplace difficulties. If, for example, an employee has been tardy several times without an excuse, the employee might reveal at a disciplinary meeting that he or she has recently begun taking medication for major depressive disorder, which makes it difficult to get going in the morning.
If an employee does not make this type of disclosure, you may not ask whether an employee has a disability. The only exception is for inquiries that are “job related and consistent with business necessity.” This means you must have a reasonable belief, based on objective facts, that the employee is unable to perform the essential functions of the job due to a medical condition, or that the employee has a medical condition that could create a direct threat to the employee’s health and safety or the health and safety of others. This standard might be met if, for instance, an employee began behaving erratically, appearing disoriented, and communicating in cryptic, confusing terms at work. In this situation, you would be justified in asking the employee what is going on and requiring the employee to have a medical examination.
Once you learn of an employee’s disability and possible need for workplace assistance, you have a legal obligation to engage in a dialogue with the employee about possible accommodations that might work. You don’t need to provide the exact accommodation the employee requests, as long as you provide an effective accommodation. For example, an employee with a learning disability who has trouble remembering oral instructions might request a different supervisor, if her current supervisor likes to pop in and deliver work assignments in casual conversation. Instead, you might require the supervisor to follow up these in-person discussions with emails that clearly describe each assignment in detail, including deadlines.
The possible accommodations for mental disabilities run the gamut from time off work and scheduling changes to modifications in the structure of the workplace (for example, to provide sound proofing for an employee whose disability affects concentration) and communication or supervisory styles. You can learn much more about accommodations for particular mental disabilities at the website of the Job Accommodation Network.
For more information on the ADA and your duty to accommodate, see Reasonable Accommodation for People With Disabilities: The ADA.