Reasonable Accommodations in the Workplace Under the Americans With Disabilities Act (ADA)

1. Reasonable Accommodations in the Workplace Under the Americans With Disabilities Act (ADA) One tool to help persons with mental health conditions secure and retain employment, work productively and feel safe in the workplace Can be used on its own or in coordination with supported employment, job training, subsidies and other workforce development tools

2. CONTEXT 80% of persons with mental illness are unemployed while 60% want to work Beyond allowing people to support themselves, work is also a powerful form of therapy, a tool to increase self esteem resulting from productivity and socialization. Studies show people with mental illness who find competitive jobs have a higher quality of life, fewer symptoms and lower mental health care costs. "Work is critical to identity, to dignity, to who you are," according to Mary Giliberti, Executive Director of National Association for Mental Illness "When we are funding work, we are decreasing the cost of future treatment.” (1)

3. Definition of Reasonable Accommodation in the Workplace under the ADA A Reasonable Accommodation is any change in the work environment to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment. (2) Equal Employment Opportunities Commission (EEOC) regulations define "reasonable accommodation" to include "modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position.“ (3)

4. Requirements of and Exceptions to the Law Businesses with fewer than 15 employees are not covered by the employment provisions of the ADA. Moreover, a covered employer does not have to provide a reasonable accommodation that would cause an "undue hardship." Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an organization's size, financial resources and the nature and structure of its operation. (4) Employees are required to disclose and document the nature of their disability at the employer’s request when asking for an accommodation. The request and any documentation submitted in support of such request must remain confidential with the employer. (5)

5. What constitutes a disability under the ADA? The ADA does not contain a list of medical conditions that constitute disabilities. The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities. A reasonable accommodation may be obtained for any condition that would, if left untreated, “substantially limit” one or more life activities which include communicating, concentrating, eating, sleeping, regulating thoughts or emotions, caring for oneself and interacting with others. A condition does not have to result in a high degree of functional limitation to be “substantially limiting.” It may qualify, for example, by making activities more difficult, uncomfortable or time consuming to perform compared to the way other people perform them. Further, if the client’s symptoms come and go, what matters is how limiting they would be when present. (6)

6. Conditions that are commonly accepted or not accepted as disabilities Federal regulations say that some disorders should easily be found to be disabilities, including major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder and schizophrenia. Other conditions may also qualify depending on the individual’s symptoms. Additionally, an individual may qualify for a reasonable accommodation if he or she has had a substantially limiting impairment in the past. The ADA, however, does not protect individuals currently engaging in the illegal use of drugs, where an employer takes an action based on such use. Someone with alcoholism or who was addicted to drugs in the past may be entitled to a reasonable accommodation, such as time off for treatment. (7)

7. Reasonable Accommodationsfor Persons with Mental Health Conditions Examples for accommodations with persons with the following conditions are provided by the Job Accommodation Network (JAN), a service of the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) These are listed by disability, limitation (e.g. attentiveness, non-compliant behavior) and work-related function. Listed conditions include anxiety disorder, AD/HD, Autism Spectrum, Bipolar Disorder, Depression, Eating Disorders, Obsessive Compulsive Disorders, Personality Disorders, PTSD, Phobias, Schizophrenia, Seasonal Affective Disorder. JAN provides consultation for employers, employees and their representatives, such as employment specialists or attorneys (8)

8. Selected examples from JAN website Anxiety Disorder • Food service worker talks incessantly to colleagues about her personal problems; job coach from her mental health agency brought in to coach her on proper communication at the worksite (job training by an outside entity as a reasonable accommodation) • Prospective employee with anxiety disorder allowed to take application home with him, which normally must be completed in office (ADA provision for reasonable applies to job applicants as well as employees) (9)

9. Selected examples from JAN website (cont’d) Depression County property records employee suffered bouts of depression during busy periods; employer reassigned part-time employee to office during busy times, accommodating the employee with depression by assigning him to a space behind a partition where he could work without being disturbed (changing work site and re-arranging workforce are accommodations) (10)

10. Examples from JAN website (cont’d) Post Traumatic Stress Disorder (PTSD) Postal worker driving a truck experienced stress related to the noise of the truck and the smell of gasoline. A respirator and headphones and extra breaks were provided/allowed as reasonable accommodations, but did not suffice. A transfer to another position was requested as a reasonable accommodation (11) Transfers are regarded as reasonable accommodations when there is a vacant position provided an employee with a disability can perform its essential functions (12)

11. Examples from JAN’s website (cont’d) By Limitation e.g. Control of Anger/Emotions Apps for Miscellaneous Mental Health / Control of Anger & Emotions Behavior Modification Techniques Counseling/Therapy Disability Awareness/Etiquette Training Employee Assistance Program Environmental Sound Machines / Tinnitus Maskers / White Noise Machines Flexible Schedule Job Restructuring Simulated Skylights and Windows Sun Boxes and Lights Supervisory Methods Support Animal Support Person

12. Examples from JAN’s website (cont’d) • By Work Function • Using Cognitive Function –https://askjan.org/workrelatedfunctions/Use-Cognitive-Function.cfm • Additional Training Time / Training Refreshers, Aide/Assistant/Attendant, Color Coded System, Counting/Measuring Aids, Electronic Dictionaries Electronic Organizers, Extra Time, Job Coaches, Line Guides, Marginal Functions, Modified Break Schedule, On-site Mentoring, Reassignment, Reminders, Service Animal, Support Person, Training Modifications, Uninterrupted work time • Such accommodations may compensate for cognitive deficits of persons with mental health conditions owing to those conditions, to the side effects of medications or to co-morbidity (e.g. TBI, Developmental disability)

13. The Mental Health Provider’s Role in a Client’s Request for Reasonable Accommodation at Work The person in recovery may ask you to document his or her condition and its associated functional limitations, and to explain how a requested accommodation would help. The employer, perhaps in consultation with a health professional, will use this information to evaluate whether to provide a reasonable accommodation, and if so, which one. The person evaluating the accommodation request also may contact you to ask for clarification of what you have written, or to provide you additional information to consider. For example, you may be asked whether a different accommodation would be effective where, for example, the requested accommodation would be too difficult or costly for the employer to provide. (13) The provider should include the person in recovery in communicating with the employer (e.g. drafting and editing letters, conference calls).

14. Disclosure – Pros and Cons While disclosure of the condition meriting a reasonable accommodation is a requirement under the ADA, employees may justifiably fear stigma and retribution, even though the law specifically prohibits discrimination on the basis of disability (something that is not always easy and can be costly to prove) While employers are legally required to keep disclosures confidential, an employee may feel better about making such a disclosure in a context where confidentiality is guaranteed (often in writing) with Human Resources although employees report being more comfortable confiding in a direct supervisor (14) Reasonable accommodations are often provided without any reference to the ADA or to a mental health condition. For instance, if an employee suggests that s/he might be more productive if able to telecommute or work in a quiet office, an employer might provide such an accommodation without any need for further disclosure.

15. Selected Resources Job Accommodation Network (e.g. archived webinars available online with live Q & A, consultation services) – www.askjan.org Equal Employment Opportunities Commission (agency with the responsibility for enforcing the ADA) – www.eeoc.gov Employee Assistance Programs in the State of Connecticut include those listed at http://connecticut.networkofcare.org/mh/services/subcategory.aspx?tax=PH-2000 and http://www.solutions-eap.com/ Supported Employment Programs – includes those listed at: http://connecticut.networkofcare.org/mh/services/subcategory.aspx?tax=ND-6500.8120 Legal Assistance and Advocacy – Connecticut Legal Rights Project (http://www.clrp.org/), Disability Rights Connecticut (https://www.disrightsct.org/), Statewide Legal Services of Connecticut (https://slsct.org/), National Alliance on Mental Illness – Connecticut Chapter (https://www.namict.org/)

16. Citations 1.https://www.usatoday.com/story/news/nation/2014/07/10/highunemployment-mentally-ill/12186049/ 2. https://www.eeoc.gov/laws/types/disability.cfm 3. http://www.agentsofamerica.org/eo-prevention/eeocs-determination-of-reasonable-accommodation-for-an-intellectual-disability/ 4. https://www.dol.gov/odep/pubs/fact/ada.htm 5. https://disabilityrightsiowa.org/wp-content/uploads/2012/11/FAQ-About-Disability-Disclosure-under-the-ADA.pdf 6. www.askjan.org/disabilities/mental-health-impairments.cfm 7. https://www.eeoc.gov/policy/docs/psych.html 8. www.askjan.org 9. https://askjan.org/disabilities/Anxiety-Disorder.cfm 10. https://askjan.org/disabilities/Depression.cfm 11. https://askjan.org/disabilities/Post-Traumatic-Stress-Disorder-PTSD.cfm 12. https://hrdailyadvisor.blr.com/2017/10/11/ada-transfer-reasonable-accommodation/ 13. https://www.eeoc.gov/eeoc/publications/ada_mental_health_provider.cfm 14. https://abilitymagazine.com/disclosure-decisions-pros-and-cons/ and http://likemindstaranaki.org.nz/uploads/Pros%20and%20Cons%20of%20Disclosure%20about%20Mental%20Illness.pdf

17. Talking points for Q & A What constitutes an undue burden for an employer with regards to reasonable accommodations Measures of employee’s performance on the job with reasonable accommodations Consideration of consumer’s work issues in individual and group therapy Informing consumers that they many people with mental health conditions, diagnosed and undiagnosed, are working, and that while mental illness is not often discussed in the workplace, they should not feel that they are the only worker struggling with or managing their mental illness Promoting reasonable accommodation as a possible solution for those consumers (the majority) who want to work but feel they are not capable of doing so. Encouraging consumers to explore job options which are most suited for them. Other tools to supplement Reasonable Accommodations in the workplace Other laws fill in gaps to ADA (Federal Workers, ADA amendments)