March 2013 Bar Bulletin
 
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March 2013 Bar Bulletin

Mental Health Issues May Require Workplace Accommodation

By Karen Sutherland

 

Mental health issues in a work environment can be difficult for both employers and employees. This article briefly addresses some of the issues that commonly arise.

If an employee is behaving strangely at work, may the employer order the employee to submit to a mental health evaluation?

A mental health evaluation is a medical examination under the Americans with Disabilities Act (ADA). Any such evaluation needs to job related and consistent with business necessity. In other words, the employer must have a reasonable belief based on objective evidence that: 1) the employee will be unable to perform the essential functions of his or her job because of a medical condition; or 2) the employee will pose a direct threat because of a medical condition.1

A "direct threat" is "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." A "significant" risk is a high risk. If the employee has a psychiatric disability, the employer must identify the specific behavior that would pose a direct threat. A history of psychiatric disability or being treated for a psychiatric disability is not enough to establish a "direct threat."2

What is the role of medication in determining if an employee has a disability? May an employer require an employee to take medication that would reduce or eliminate the symptoms of a disability?

An employer cannot force an employee to take medication. It is up to the employee to decide what medication to take and to consider the consequences of not taking medication.3

Medication monitoring also is not a reasonable accommodation and the effects of medication are not taken into account in determining whether the employee has a disability. As the EEOC has stated:

The ADA legislative history unequivocally states that the extent to which an impairment limits performance of a major life activity is assessed without regard to mitigating measures, including medications. Thus, an individual who is taking medication for a mental impairment has an ADA disability if there is evidence that the mental impairment, when left untreated, substantially limits a major life activity. Relevant evidence for EEOC investigators includes, for example, a description of how an individual's condition changed when s/he went off medication or needed to have dosages adjusted, or a description of his/her condition before starting medication.4


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