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EEOC "Guidance" on Mentally Ill Employees

Summer 1997

Our Labor & Employment Practice Group would be happy to assist you with any questions relating to this article.

The Americans with Disabilities Act ("ADA") protects employees with physical and mental disabilities. In early May 1997, the Equal Employment Opportunity Commission ("EEOC") provided employers with guidance on their obligations under the ADA regarding mentally ill employees. Although in some respects helpful, much of the EEOC's direction seems strangely detached from the realities of the workplace. Consider these guidance examples:

- When an employee asks for time off because he or she is "depressed and stressed," the employer has been put on notice that the employee is actually requesting a reasonable accommodation.
- When an employer receives an inquiry from an employee seeking an explanation for special treatment afforded a fellow-employee, the employer may not tell the inquiring employee that the particular individual is receiving a reasonable accommodation. The employer may only advise the employee that the special arrangements are made to comply with federal law.
- An employer may be required to provide an employee with a later scheduled starting time if the employee has difficulty arising in the morning due to a psychiatric condition or medication taken for that condition.
- An employer may be required to accommodate an individual with a disability which interferes with the employee's ability to concentrate by providing that employee with greater day-to-day supervisory guidance, feedback, or structure.
- An employee with a psychiatric disability works in a warehouse with no regular customer contact or frequent contact with other employees. Over time he comes to work "appearing increasingly disheveled," becomes "increasingly anti-social," and is "abrupt and rude" with his or her co-workers. The employee may not be disciplined for violating the employer's policies requiring "neat appearance" and "courtesy to others." The EEOC deems these work rules "not job-related for the position in question or consistent with business necessity."

Increasingly, the courts and the EEOC have been at odds over application of the ADA, with the EEOC pressing to expand the reach of this law and the courts, as a whole, resisting. These new guidelines probably will increase the likelihood of court disagreements with the EEOC's expansive reading of the ADA. Given these new guidelines, however, employers are urged to be particularly sensitive to and plan carefully for problems connected with real or possible mental health problems in the workplace.

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