Defining Mental Health Disabilities under the ADAAA

Defining Mental Health Disabilities under the ADAAADefining Mental Health Disabilities under the ADAAADefining Mental Health Disabilities under the ADAAA Berkowitz, Esq.Imagine that one of your employees suddenly starts missing deadlines or making mistakes at work. She is coming in late without explanation a couple of times per month and you overhear zu sich telling a co-worker that she is really stressed right now.You may recall that the Americans with Disabilities Act Amendments Act(ADAAA) expanded the definition of disability to include more types of impairments under the laws coverage, but you are not sure how that applies to mental health issues.What do you do?In the three years since the ADAAA became effective, the number of employees who have filed complaints of disability discrimination with the EEOC has risen by nearly 20%. Managing mental health issues can be particularly tricky because symptoms are hard to identify and employees are often reluctant to talk about their prob lems.Now that the long-awaited EEOC regulationsinterpreting the ADAAA are final, business-owners know that they have to address those workers who are stressed out, depressed, anxious or even threatening to the workplace.But how exactly?The first thing to keep in mind is that an employers responsibilities under the ADAAA are the same whether you are discussing employees physical impairments or mental impairments.If you determine that an employee is disabled for any reason, your next step will always be to consider whether that employee can perform their job with or without a reasonable accommodation.When making these determinations for mental health disabilities, keep these issues in mind (and many apply tophysical impairments as well)The ADAAA now lists a number of mental health conditions that are almost always considered covered disabilities, including major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder or schizophrenia. An em ployee with such conditions is going to be protected by the ADAAA without you having to consider the nature of the condition.A health condition does not have to be permanent to be a disability, so an employee with episodic depression could be entitled to an accommodation.It does not violate the ADAAA to question an employee whose work is slipping even if you suspect that he or she suffers from a mental disability.Be careful not to take an employment action because you regardan employee as having a disability. That is, do not make an assumption that an employees behavior is the result of a mental health condition.Possible accommodations must be reasonable for the business. Time off work, telecommuting, changed or lessened responsibilities or a reduced schedule may or may not be reasonable accommodations for a mentally ill employee, depending on your businesss specific situation and the employees needs.Take a look at the EEOCs small business guidelinesfor the ADAAA to get more informa tion specific to smaller organizations.Employees that are currently using illegal drugs or abusing alcohol are not protected by the ADAAA and may be subject to discipline. An employee who is a recovering addict or in a treatment program is entitled to protection.So what should you do about your stressed-out employee?Talk to her privately, focusing objectively on her work deficiencies and what she needs to do to bring her performance back up to an acceptable level.Be prepared to discuss reasonable accommodations if her answers point to her having a mental health-related disability.If she assures you that she is fine and denies that there is anything wrong, continue to monitor her employee performance just as you would for any employee whose work has been less than stellar.Read more Employment Law Small Business Updates