The employee did mention to HR that he had a medical problem, and he did go out for a short time on disability. He believed that when he had these attacks, he should be given some leeway. But the company's stand was that in a lean and mean, competitive industry, if a worker didn't carry his or her full share, it wasn't fair to others. When a larger firm bought the company and insisted on staff reductions, the employee was downsized. After his termination, he came in once more to read his personnel file. While he sat in an unused office leafing through the file, the HR staff worried and wondered what was coming next.
They had good reason to worry. Had the employee chosen to sue the company for employment discrimination under the ADA, his case probably would have been successful. The company's human resources staff had made no effort to accommodate the employee's psychiatric disability. Having no clear understanding of what comprises mental disabilities was HR's first error. Having no clear accommodation strategy was it's second problem.
But, seven years after the ADA became law, HR is still wondering how to accommodate workers with psychiatric disabilities. Because so many business professionals, especially human resources managers, needed more guidance about the psychiatric disabilities that always have been covered by the ADA, the Equal Employment Opportunity Commission (EEOC) drafted a 40-page document of guidelines intended to answer the most frequent questions arising from attempts to accommodate psychiatric disabilities. Those guidelines were published in April 1997 as "Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities." They have been raising a dust storm despite the fact that they aren't mandates and don't add new provisions to the ADA. Instead they've renewed a simmering debate about how far an employer must go to accommodate a person with a mental disability.
Ever since passage of the ADA, segments of the business community have been critical of its requirements for reasonable accommodation of both mental and physical disabilities. Objections have focused on cost and complexity because every person with a covered disability requires consideration of his or her unique needs in a particular workplace. Now the criticism from business owners who have disliked the ADA from the beginning is mounting. What was the HR staff at MICOM supposed to do with the man having panic attacks? Clearly, they should have responded better than they did.
Under the ADA, business owners may not discriminate against otherwise qualified workers with mental illness. The act limits what employers can ask applicants about their history of mental illness, yet, requires they take reasonable steps to accommodate employees with psychiatric disabilities. Do the guidelines mean, then, that HR managers are required to diagnose or assess mental disabilities? No. But they offer a road map to employers managing an employee who has a mental disability. There are practical, tested suggestions for HR managers who may be uneasy about dealing with employees who have such a disability. Understanding the EEOC's guidelines is a good place to start.
How can HR apply the guidelines?
The EEOC guidelines clarify the application of the ADA through hypothetical cases and indications of how the EEOC would likely rule on them. Assistant Legal Counsel for Coordination Carol Miaskoff at the EEOC's Washington, D.C., headquarters, notes that questions from employers and EEOC investigators about the ADA and psychiatric disabilities led to the drafting of the guidelines. The guidelines don't introduce new law, she explains. "It's a fairly conservative document in that it doesn't break new ground. The ADA and the Rehabilitation Act of 1973 before it have always covered psychiatric disabilities. The section on particular accommodations is meant to be a helpful guide for someone looking for ideas about how to accommodate a particular employee."
Miaskoff believes much of the angry mail the EEOC has received since releasing the guidelines has been generated by media reports that are inaccurate, not by the guidelines themselves. Some writers apparently have the impression that conditions that aren't disabilities would be protected, that "being 'blue' one day, or just being weird, would give someone all these special protections," says Miaskoff. Being blue or weird aren't protected conditions. The EEOC relies on the American Psychiatric Association's 1994 revision of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) for definitions of mental or psychiatric disabilities. Stated briefly, these disabilities represent the consequences of brain malfunctions, just as physical disabilities represent the consequences of physical malfunctions.
At issue is whether individuals will be able to feign mental illnesses and take advantage of the system. Also at issue is to what extent employers must go to accommodate what they can't always see, or what they can see but can't understand. Further, some are wondering if the requirement to reasonably accommodate an employee's psychiatric disability is asking too much of HR professionals. Is obeying the law an automatic financial drain, a requirement to continue to pay a less productive employee?
"At first glance, it's nothing but another nightmare money pit," acknowledges Donald Hantula, an organizational psychologist whose teaching and research at Temple University in Philadelphia focus on human resources issues. But Hantula believes the greatest barriers to these accommodations are matters of attitude, not cost or difficulty. An employee who has a nonphysical disability is more likely to need closer supervision, more feedback and more conversation about the project at more steps along the way than an employee with a physical disability. The employee with a psychiatric disability needs an involved supervisor. "Accommodating most nonphysical disabilities isn't as much a matter of arranging the environment as for physical disabilities (the accommodations are usually social), but these employees are as entitled to feedback and positive reinforcement as employees in wheelchairs are to wheelchair ramps."
Often lost in the debate over how to accommodate psychiatric conditions is the fact that a disabled employee must be able to perform. "Managers shouldn't lower the hurdles," explains Peter Petesch, a management-side labor and employment attorney with Harrison and Ford LLP in Washington, D.C. "A company should hold the employee to the same standards for customer service as other employees in similar jobs. And mental illness isn't a shield for making violent threats. I don't think there's a lack of freedom to fire someone who isn't performing or who violates the employer's workplace violence rules. HR should stick to managing performance, not diagnosing conditions or supervising medications." How to achieve parity in accommodating individuals who have psychiatric disabilities, Petesch insists, is clarified by the ADA. He believes people object because of the learning curve on which these guidelines put everybody in our society. "Everyone is fumbling for answers, including the courts." No clear shared understanding about psychiatric illness governs the conduct of American public life. How much do most of us really know about schizophrenia or clinical depression? Jokes that reveal our discomfort about mental illness are far more widespread than accurate information and attempts at understanding are.
How common is psychiatric disability in the workplace?
The idea that the EEOC guidelines force a new, unstable population into the American workforce is wrongheaded. People with mental disabilities are already in the workforce. They just may not be visible.
For example, in any given year, according to a 1994 report of the National Institute of Mental Health in Bethesda, Maryland, more than 51 million adults in this country live with a diagnosable mental disorder. One of those mental disorders is schizophrenia. Two million American adults have this mental illness, according to the Center for Mental Health Services in Washington, D.C., a division of the U.S. Department of Health and Human Services. Many of these people are in the workforce.
It's a question of degree. The truth is, most people experience occasional panic. Most would acknowledge occasional depression or sometimes having feelings of uncontrolled elation. Many people would admit to feeling confused at times or having a poor ability to concentrate. Whether these conditions are disabling is a matter of degree. Employees who are disabled by these conditions experience them more often, or longer, or to a greater extent than the general population. Supervisors and co-workers accommodate these conditions in their mild forms as a matter of their daily business conduct with most people, writing them off as idiosyncrasies or bad days. In their diagnosable forms, these conditions cause great pain to those who suffer from them, and they're truly disabling. When these conditions interfere with the employee's ability to perform the essential functions of the job, they require formal accommodation by employers-even when these conditions aren't visible to the untrained observer.
Nat Fuchs, vice president for human resource development at the entertainment company Showtime in New York City, believes HR's job becomes more daunting when disabilities-physical or psychiatric-are invisible. He suggests that when the disability is easily observable, the observer crosses an important psychological barrier and accepts the disability.
That barrier remains when the disability can't be confirmed visually. When the disability is mental, the barrier can feel insurmountable unless something in the culture has softened it, made it acceptable. "[Unacceptance is] born of ignorance. We [in America have] made it okay to say you have a learning disability. That's cool. But if I referred to it as a mental disability, I'd get a different reaction," Fuchs explains. "[For example,] I can't keep directions straight-I continually confuse north, south, east and west. If I told people I had a mental disability, they'd respond completely differently from the way they respond to my claim that I have a learning disability."
The even more challenging issue for businesses, and especially for HR, is when an employee isn't willing to reveal the exact nature of his or her disability.
How does the employer learn that the employee has a psychiatric disability?
Much of the confusion about parity in accommodating mental disability arises over the employee's legal requirement to self-identify as disabled to the employer if he or she wants to request an accommodation, whether the disability is physical or psychiatric. According to the EEOC guidelines, it's sufficient for the employee to use "plain English" to self-identify. This means that the employee doesn't have to say, "I'm having difficulty with this task and request reasonable accommodation because I suffer from a disability as defined by the Americans with Disabilities Act." It's sufficient for the employee to say, in the language of an example in the guidelines, "I need time off because I'm depressed and stressed." The guidelines continue, "This statement is sufficient to put the employer on notice that the employee is requesting reasonable accommodation. However, if the employee's need for accommodation isn't obvious, the employer may ask for reasonable documentation concerning the employee's disability and functional limitations." Experts advise that the documentation should detail the employee's functional limitations and recommended accommodations, not the disability itself.
Some employees choose not to disclose their mental disabilities because of the stigma attached to them. Darrell, 43, a computer programmer, learned in 1984 that he suffers from schizophrenia. He was in the Army when he became delusional and received his diagnosis-and a medical discharge. He hasn't disclosed his diagnosis at work. "I think people have less trouble [dealing] with [someone who has] AIDS than [dealing] with [someone with] psychosis. When you say 'psychosis,' everyone thinks of the Norman Bates shower scene in the movie 'Psycho,' but it's not like that. For the most part, I do real well at work. I doubt that any of my co-workers know or suspect what I have. People need to realize we're already here. I've been employed as a civilian since 1984."
Darrell hasn't identified himself as disabled or asked for formal accommodations at work. Because he doesn't wish to disclose his condition to his co-workers, he manages his own accommodation. His schizophrenia is controlled by medication, but when he becomes too stressed at work, he takes vacation days he has saved for this purpose, sometimes on short notice.
When Darrell has searched for work, prospective employers have asked him why he left the Army on a medical discharge, probing the nature of the medical condition. The question is illegal and Darrell knows it, but rather than challenge the interviewer, he just responds that he has a chemical imbalance. Anyone with a psychiatric disability could give the same response.
Darrell may not be aware that he can identify himself as having a covered disability without revealing his diagnosis. He copes very well, but in a company where employees haven't been educated about the requirement to identify themselves if they need an accommodation, Darrell is understandably concerned about how he would be treated if he did identify himself as disabled. There's no clear company policy about nondiscrimination based on psychiatric disability at his current workplace. This general lack of information about how the ADA works-and about what will happen if an employee does request an accommodation-perpetuates the workplace atmosphere in which Darrell believes he's wiser just to keep quiet.
Is HR responsible for assessing a mental illness?
It's HR's responsibility to make sure all employees, including those like Darrell, are comfortable disclosing their needs, if not their diagnoses, and what they, as managers, can and will do to help when asked. Psychiatrist Richard Kunnis is head of the managed-care practice and a partner in the Boston office of Ernst & Young LLP, a large accounting consulting firm. Kunnis served for several years as head of the Social Security Administration's disability evaluation program, bringing in panels of experts from medical faculties and surveying professionals to determine the capabilities of persons with particular diagnoses. He suggests that HR professionals who have felt burned by the disability assessment process may have undue expectations of themselves. HR professionals, he explains, can't see if someone's depressed, or if they suspect depression, how depressed the person is. Similarly, they can't assess how much a person with congestive heart failure-a physical disability-can do. In fact, on his Social Security Administration medical panels, there was greater consistency among responses from experts about the functionality of a person with depression than a person with congestive heart failure. So where does that leave HR?
Assessment, he insists, isn't human resources' job. But MICOM managers, who didn't accommodate the former employee who was having panic attacks, for example, could have done a better job without trying to diagnose and assess their worker who had panic attack disorder. Noting that, of course, he doesn't have all the facts of the case, Kunnis explains what could have been done differently-on both sides. In short, "The employer has an obligation to minimally investigate, not just call the employee a liar." According to Kunnis, the employer needs to get the facts.
First, the employee has the obligation to self-identify as a person with a disability. A reading of the EEOC guidelines suggest that the MICOM employee did that by telling HR that he had a medical condition and needed some time off for treatment. However, he could have provided documentation of his requests from his health-care provider rather than writing long diatribes to management. The documentation doesn't necessarily include the specific diagnosis, but it should identify the condition as a disability and suggest possible reasonable accommodations.
Kunnis suggests that if the employee doesn't provide this documentation, then the employer should approach the company's health provider for a referral to an occupational psychiatrist to get an evaluation of an employee's functional limitations. The occupational psychiatrist is a specialist whose report should answer these four questions:
- How frequent and acute are the symptoms?
- What are the prospects and the costs of treatment?
- What are the employee's functional limitations?
- Are there recommended accommodations? If so, what are they?
The evaluation should cost approximately $300, Kunnis reports. It's the first step to learning what the employee is capable of and is not capable of. From there, HR needs to assemble an accommodation team to help the employee succeed.
HR creates the accommodation implementation team.
Hantula recommends a clear course of action when an employee self-identifies as having a nonphysical disability: Create a team comprised of the employee, the employee's supervisor, the medical practitioner, an HR manager and the employee assistance plan (EAP) representative if there is one. HR should bring together these resources to gather information and present all the options. Although these people don't need to be in the same room together, the plan works best if they all work to plot a strategy to make the relationship work. Then human resources and the employee's supervisor develop the eventual plan.
Hantula believes that managing the team is an appropriate role for an EAP representative because issues of medication compliance may fall under the purview of the EAP. HR needs to make certain the plan is consistent with the employer's approach to reasonable accommodation and that it will work for the company. Hantula suggests the team review these four questions:
- What is the employee capable of doing?
- What in the work environment is allowing the employee do what he or she can do?
- What in the environment is preventing him or her from doing what he or she can do?
- What changes to his or her job or work environment can reasonably be made?
Petesch advises, "The accommodation implementation team needs to stick to job performance issues. It should only get into issues of accommodating a disability when an individual raises the issue and asks for an accommodation." His advice on the best practice when a manager suspects a disability may be interfering with performance is to ask, simply, "Is there anything you need to be able to keep doing [your job] or to improve your performance on the job?" The question opens the door for the employee to identify a disability or ask for an accommodation, or to disclose any number of other problems, such as that his or her supervisor is harassing him or her. This, Petesch insists, is much safer than leaping in to suggest accommodations when the worker hasn't requested them.
Then HR's function, Kunnis explains, is to implement the plan, not to assess the disability. For example, if the MICOM employee's panic attacks occurred only once a month and lasted about a half-hour, Kunnis explains, that could have been accommodated by having the employee make up the lost work time. If the employee needed to take a half-day off, he suggests the employer could have accommodated a significant portion of that lost time with annual sick leave. HR managers should think along the lines of how they usually accommodate a person with a physical disability, and then translate that into what makes sense for the individual in question and the employer as an organization. HR is a key player in the accommodation process, which can be a moving target.
HR sets the limits and decides on the accommodation.
In all of these discussions, HR's key role is to remind everyone on the team of the requirement to keep information about a psychiatric disability confidential. Confidentiality is especially important because accommodation of a psychiatric disability isn't a one-time event, but is more likely to be a process. People can be tempted to talk more casually about an ongoing process. Then HR has the final say on what the accommodation will be, understanding that the employer and employee may need to try several accommodations before they find one that works.
Petesch reminds HR professionals to consider that as technology changes the nature of all jobs, job descriptions will be changing along with accommodations and the competencies of the people in those jobs. Finding the best fit between people and jobs is one of the competencies that HR brings to the table. The complexity of accommodating psychiatric disabilities makes HR's involvement critical.
What has changed since former President George Bush signed the ADA seven years ago? The atmosphere has become more charged as business owners take on the challenges of accommodating psychiatric disabilities. But American business continues to move up the learning curve on this troubling issue. At MICOM, the human resources staff believe that if they faced an employee with a psychiatric disability again, they would take it more seriously and make sure that everyone involved made an honest effort to understand. As the law requires, they would seek to accommodate the employee. The new EEOC guidelines will help.
Workforce, October 1997, Vol, 76, No. 10, pp. 30-37.