Enforcement Guidance from EEOC on Psychiatric Disabilities

Earlier this year, the EEOC issued Enforcement Guidelines on psychiatric disabilities and how employers should deal with employees or applicants who have "mental impairment" that can be defined as a "disability" under the Americans with Disabilties Act. The Guidelines are meant to provide recommendations and advice on how to deal with the many individuals with mental illness who are employed in the workforce.

An important point that is raised in the Guidelines is that not all "mental illnesses" as defined by the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (now the fourth edition, DSM-IV) is a "disability" for purposes of the ADA. For example, the DSM-IV lists several conditions that Congress expressly excluded from the ADA's definition of "disability."8 While DSM-IV covers conditions involving drug abuse, the ADA provides that the term "individual with a disability" does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of that use.9 The DSM-IV also includes conditions that are not mental disorders but for which people may seek treatment (for example, problems with a spouse or child).10 Because these conditions are not disorders, they are not
impairments under the ADA.

As of yet, there are no per se disabilities, so even an individual with depression might not be disabled under the ADA, depending on the facts. A disability under the ADA has to "substantially limit" a major life activity such as sleeping, caring for oneself or working. It also needs to be permanent or long-term in order to be a "disability." Thus, an example is made in the Guidelines of an employee who was distressed by the end of a romantic relationship and was able to continue his daily routine, although he sometimes became agitated at work. The agitation lasted about a month and the condition was diagnosed as "adjustment disorder" with limited duration. This individual is not 'disabled" under the ADA because there is no "substantial" and permanent or long-term impariment to any major life activity.

In contrast, the EEOC provides an example of an employee has had major depression for almost a year. He has been intensely sad and socially withdrawn (except for going to work), has developed serious insomnia, and has had severe problems concentrating. This employee has an impairment (major depression) that significantly restricts his ability to interact with others, sleep, and concentrate. The effects of this impairment are severe and have lasted long enough to be substantially limiting.

The Guidelines provide a wealth of valuable information for both employers and employees. Employers need to be familiar with their obligations and requirements when faced with a disabled individual (for example, whether they can ask about a psychiatric disability during a job interview, or whether a part-time schedule or leave is a reasonable accommodation) and employees need to be aware as well of their rights under the law so that they can take action when they might be violated or in risk of being violated.