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Psychiatric disabilities challenge employers

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Discrimination claims related to intellectual and psychiatric disabilities are expected to increase under a change in federal law, but employers face significant challenges in efforts to deal with such disabilities.

Key obstacles to effective accommodation for psychiatric disabilities in particular include employers' lack of knowledge and a tendency to misinterpret symptoms, observers say.

Jerrold F. Goldberg, a shareholder with law firm Greenberg Traurig L.L.P. in New York, said, “It's one thing to deal with a physical limitation that can be addressed, either in terms of modifying a work station” or giving people time to recover from medical conditions.

But accommodating psychiatric conditions is much more difficult because people do not understand them “as well as they do some physical limitations or physical conditions.” In addition, “there are a lot more misperceptions about people with mental and psychiatric conditions,” Mr. Goldberg said.

Gregg M. Lemley, a shareholder with law firm Ogletree, Deakins, Nash, Smoak & Stewart P.C. in St. Louis, said, “It's easier when it's something you can't see, or something you're not as familiar with, to jump to the conclusion that the employee is malingering or is trying to game the system.”

The issue has become more critical for employers with the adoption last month of the Americans with Disabilities Act Amendments Act, which vastly expands the number of workers potentially covered under the law and is expected to result in more disability discrimination claims. In addition, the Equal Employment Opportunity Commission is expected to take a more aggressive approach to such claims involving intellectual and psychiatric disabilities (see related story).

Peter J. Petesch, a shareholder with law firm Littler Mendelson P.C. in Washington, said, “Under the amendments to the ADA, you will see more cases of individuals with various mental disabilities and psychiatric disabilities.”

There were 25,165 charges filed under the ADA in fiscal year 2010, a 17.3% increase from 2009. This includes physical, as well as mental disabilities such as depression, anxiety disorders and manic depressive disorder.

Richard D. Tuschman, a partner with law firm Duane Morris L.L.P. in Miami, said employers should understand that the definitions for mental disabilities have been expanded so that “in fact now there are some conditions, including some mental conditions, that are virtually per se disabilities, where that used not to be the case.”

The question then becomes not whether someone is disabled, but whether the employer reasonably accommodated or discriminated against the worker because of the disability, he said.

The key issue is “how to deal with (such) issues effectively—and without inviting litigation—when they do arise,” Mr. Tuschman said.

Employers should not make assumptions about an individual's condition, said Laura Sack, a shareholder with law firm Vedder Price P.C. in New York.

“I don't think it's a good idea for employers to conclude that anybody who suffers from "Condition X,' whether it's Tourette's or dyslexia or schizophrenia, is...in every instance, incapable of performing a certain job. I believe that the correct approach for employers is to follow what I'd describe as that individualized inquiry.”

She said that inquiry should answer “what limitations, if any, does that person's disability place on their ability to perform the job at issue, and what reasonable accommodations, if any, could we make that would enable them to succeed on the job and to perform the essential functions of the job satisfactorily?”

Sharon S. Moyer, an attorney with Sacks Tierney P.A. in Scottsdale, Ariz., said part of the accommodation process is “making sure you engage the employee and hear what they are saying. And part of the challenge of people with psychiatric disabilities” is these disabilities are not readily apparent, “so you have to listen more carefully.”

The accommodation need not be complex, said Ms. Moyer. For instance, when workers are taking certain medications to treat schizophrenia, which cannot be administered on an empty stomach, and they are not permitted to eat or drink at their desks, they should be allowed to take a break to do so elsewhere.

There also are times, she said, when it is appropriate to deviate from company policies that forbid employees working from home. “Obviously, you still have to have the right performance monitors in place,” she said.

Ms. Moyer said she also recommends use of the Family and Medical Leave Act in cases when employees first are diagnosed with a depression disorder. “All of a sudden you've got meds,” and it frequently “takes two or three times before they get it right,' during which time people can be “absolutely unstable.” FMLA leave gives them the opportunity to get their medications “straightened out,” Ms. Moyer said.

Mr. Goldberg suggested a greater focus on education. Employers need to become better educated on the types of psychological impairments, and should seek advice from attorneys and medical practitioners or agencies on how to accommodate workers dealing with such issues, he said.

James S. Urban, a partner with law firm Jones Day in Pittsburgh, said if a discrimination claim is filed, “you need to be very thoughtful about how you're presenting your case to the EEOC,” which is usually in the form of a position statement, because certain topics “are going to raise red flags.”

He cited as such a red flag a supervisor's comment in the case of EEOC vs. Land Air Express of New England, which resulted in a $360,000 settlement in 2003 to a terminated employee who suffered from depression, among other problems. The supervisor had been reported as stating he felt the plaintiff was a danger even though she had no history of violence. The case was highlighted at last month's EEOC meeting on intellectual and psychiatric disabilities.

Employers, he stressed, must be careful about whether they are “accurately presenting what's happened to the EEOC.”