How Can Firms Best Accommodate Employees With A MentalImpairment?

An owner of a retail store in Denver, Colo.,with more than 100 employees recently learned that a janitor shehired several years ago has developed a mental impairment that isimpacting her performance.

This employee has asked the employer to help her with some ofher tasks so that she may continue working. The employee said shehas “mild psychological” issues and was told by her doctor that shehas a bipolar disorder. The owner wants to work with the employeeand keep her working.

The employees impairment prevents her from completing some ofthe required paperwork and disarming and setting the stores alarm.She also is unable to heed written instructions.

In calling the EPL Hotline, the owner wanted to know:

If the Americans With Disabilities Act applies to individualswith a mental impairment?

What constitutes a reasonable accommodation?

If this employees requests were reasonable?

The hotline's response to the employers first question was, yes,the ADA does apply to individuals with mental impairments inbusinesses with 15 or more employees. In this case, it is likelythat the worker has a covered impairment under the ADA. A bipolardisorder is the type of disability that numerous courts have foundto fall within the scope of the laws protections.

The answers to the second and third questions are more complex,however.

The ADA prohibits any form of discrimination against “qualifiedindividuals” with a “disability” (or a record of an impairment, orwho is “regarded” as impaired) in an employment context.

A “disability” is described as any physical or mental impairmentthat presents a substantial limitation to an individuals ability toperform major life activities such as talking, seeing andworking.

A person is considered to be a “qualified individual” if he orshe has the requisite skill, experience and education, and is ableto perform the essential functions of the job, either with orwithout a “reasonable accommodation.” A reasonable accommodation isdescribed as any act on the part of the employer that enables anemployee with a disability to perform the essential functions ofthe job.

If an employee is both “qualified” and “disabled” under the ADA,the employer must provide the employee with a reasonableaccommodation, unless doing so would create an undue financialburden or present a direct threat to the safety and health of theemployee or others.

The law in Colorado, which is known as the ColoradoAnti-Discrimination Act of 1957, and most other states imposessimilar legal obligations on employers. In this instance,therefore, the employer is required to accommodate the employeeunless doing so would present an undue financial burden or asignificant health or safety issue to the employee or others.

What is a reasonable accommodation? Any act on the part of anemployer that helps an employee with a disability overcome physicalbarriers or other problems in the workplaceproblems that preventthe employee from performing the essential functions of thejob.

Employees with disabilities often face many types of barriers inthe workplace. Some are physical, which make it difficult to getaround certain areas of the work site or to use equipment. In thecase of mental impairments, the barriers may be more difficult todiscern.

The process of determining when and in what manner to provide areasonable accommodation is one fraught with difficulty and legalexposure. It also is a process that does not readily lend itself toquantification or absolute, objective standards. Just what isreasonable depends on the specific employee, the nature of thedisability, and the job at issue.

In essence, a reasonable accommodation offers an employee with adisability the opportunity to compete on a level playing field withother employees.

In practice, the process requires an employer to make anindividualized assessment of the employee making a request for areasonable accommodation. The employer must tailor theaccommodation to the employee taking the facts and circumstancesinto consideration.

To avoid costly lawsuits and allegations of discrimination, aprudent employer should follow a step-by-step process todemonstrate good faith in attempting to follow ADA requirements forproviding a reasonable accommodation.

Types of reasonable accommodations are limited only by theimagination, flexibility, and know-how of an employer and itsdecision-makers.

Reasonable accommodations encompass any change in the workenvironment that allows an individual with a disability to performhis or her job. This can be accomplished with modifications to theworkplace, job restructuring, changes to work schedules or leavepolicies, exceptions to certain personnel policies, and acquisitionof special equipment.

At the same time, the ADA does not require an employer to hireor keep unqualified workers on its payroll. The law also does notrequire a business to lower performance standards that are expectedof all employees. In this respect, the “qualified individual”language of the ADA is interrelated to the reasonable accommodationobligation.

Being qualified is determined by the essential functions of ajob. Reasonable accommodation does not require elimination of anessential function of the job. Conversely, an employees inabilityto perform a non-essential job function does not prevent theemployee from being qualified. The reasonable accommodation dutymay be met by eliminating a non-essential job function.

To help determine what is an appropriate, proper and reasonableaccommodation, the ADA specifies that a reasonable accommodationneeds to be only that–one that is reasonable. It doesn't need to bethe best, most expensive, or most desirable.

Lisa Bee is director of EPL risk management for LexingtonInsurance Company in Boston, while Gerald L. Maatman Jr. is anemployment lawyer with Baker & McKenzie in Chicago.

Reproduced from National Underwriter Property &Casualty/Risk & Benefits Management Edition, January 6, 2003.Copyright 2003 by The National Underwriter Company in the serialpublication. All rights reserved.Copyright in this article as anindependent work may be held by the author.