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WASHINGTON-New federal guidelines on accommodating mentally ill workers may open a door to liability for employers but could also clear a path to higher productivity by offering workers help while their disabilities are still manageable.
So say analysts, attorneys and employers who have studied guidelines issued recently by the Equal Employment Opportunity Commission that clarify the Americans with Disabilities Act as it relates to psychiatric illness.
It is the first time the agency has specifically formulated a proper approach to providing accommodations to workers with mental illness so that they can continue in their present jobs or in other jobs suited to their needs.
The guidelines appear to create a host of new obligations at all levels of corporate management, from line supervisors to human resources executives, to be sensitive to the emotional stresses and mental turmoil of workers.
The agency's action prompted a wide range of reactions in industry, with some executives expressing guarded support for the EEOC's actions and others criticizing the guidelines as being unworkable and potentially expensive.
At present, 13% of claims filed with the EEOC are for psychiatric disabilities. Legal experts predicted that while the number of claims experienced by employers due to the new guidelines would vary widely, all employers need to be familiar with the ADA guidelines.
"Many of the provisions in the EEOC guidelines are undoubtedly socially useful, but they present a host of legal problems and hidden costs for employers in complying with the guidelines," said Richard Reibstein, a partner in McDermott, Will & Emery in New York. "They're far more comprehensive. Because they're out there, you have to know about them. And if you're not going to follow them, you still better know them."
Employers have been able to help employees with non-psychiatric disabilities under the ADA, he said, but "most human resource managers are ill-equipped to know how to accommodate individuals with psychiatric problems."
The guidelines apply to employees diagnosed with serious psychiatric disorders, such as major depression, bipolar disorder, anxiety disorders, schizophrenia and personality disorders. The illness, to qualify as a disability under the ADA, must substantially limit one or more major life activities, such as learning, thinking, concentrating, interacting with others or working.
To qualify as substantially limiting, the illness must affect these major activities of life for more than several months, the guidelines state, such as when an employee has had major depression for a year with symptoms of sadness, sleeplessness and problems with concentration. Another example, according to the EEOC, would be an employee on medication for a bipolar disorder who goes through repeated bouts of disruptive depression and mania.
In response to such conditions, the employer must provide a reasonable accommodation, according to the ADA, unless doing so would place an undue hardship on the employer. Employees, in speaking to the employer about the problem, need not speak specifically about a psychiatric illness. They need not mention the ADA at all, nor make a written request.
For instance, an employee can ask for time off because he is "depressed and stressed." This alone is sufficient to place the employer on notice that an ADA-related problem may exist.
Employers are not obligated to accede to every employee request for accommodation for psychological distress, however, and as with non-psychiatric ADA claims, employers may insist on documentation of the problem by a health professional.
Accommodations for psychiatric disabilities may include:
Time off using accrued paid leave or additional unpaid leave, or a modified work schedule, such as a change in working hours.
Changes in the workplace such as room dividers or soundproofing to aid workers who can't concentrate.
Changes in workplace policy, such as allowing more frequent breaks.
Changes in supervision methods, such as giving a worker detailed daily guidance.
A job coach to temporarily help a job candidate with a psychiatric disability through training.
The EEOC's advice that employers be aware of how their employees are feeling and to listen for warning signs may be more of a responsibility than many employers are eager to accept, said Judy Bauserman, a consultant with William M. Mercer Inc. in Washington.
"This places a big burden on employers to place a lot of importance on employees' words that may not have been intended by the employee," she said.
Employers will see both pros and cons to the guidelines, said Larry Boress, vp of the Chicago-based Midwest Business Group on Health, a coalition of more than 150 employers. "If these people are identified early on and given a form of treatment, they can get better a lot quicker," said Mr. Boress, adding that certain accommodations, such as adjusting a work schedule by an hour, would probably place no hardship on most employers.
On the other hand, Mr. Boress said, if an employee is empowered to demand a "mental health day" whenever he or she is stressed, it will be unmanageable for the employer. In addition, for the ill employee who genuinely can get help through such sources as an employee assistance program, such short-term solutions as days off may actually get in the way of treatment, he said.
A lawyer for the EEOC said many employer concerns are unwarranted and that companies will never be required to make an accommodation without proof of an actual mental illness, if they request it.
"A lot of this criticism is coming from employers in big business, playing Chicken Little and saying the sky is falling," said Peggy Mastroianni, associate legal counsel.
"If you're just stressed, you don't have a disability," Ms. Mastroianni said.
For those larger companies that have already invested in employees' mental health through their own assistance programs, Ms. Bauserman said, the guidelines will not be onerous.
"For those employers, the approach suggested by the ADA will fit very well with their existing strategies," she said.
Some employers are still studying the new guidelines but aren't panicking.
The medical director of Midland, Mich.-based Dow Chemical Co., Dr. Catherine Baase, said that while Dow has a good track record in being sensitive to employees with psychiatric problems, the new guidelines appear to be rather broad, and "the breadth and sweeping nature of these does pose some potential for abuse."
Despite some potential for added costs for Dow Chemical, however, she said the guidelines would probably result in at least one positive effect: the company instructing supervisors to have more open discussions with workers.
"The goal really is getting people to treatment," she said. "The goal is getting people healthier so that they can be fully productive."
But getting mentally ill people back in their jobs is extremely challenging for the typical human resources staff, and often requires far more creative strategies than someone with a non-psychiatric complaint covered by the ADA, said Veronica Hellwig, senior consultant specializing in disability issues for Watson Wyatt Worldwide in Wellesley Hills, Mass.
"There is probably not one single, solitary issue or diagnosis that is as feared as mental illness and return to work," Ms. Hellwig said.
"It's a lot more easy to modify the physical condition of an office. It's an easy fix to fix a chair," she said.