EEOC PROVIDES ADDITIONAL GUIDANCE REGARDING PSYCHIATRIC DISABILITIES

EEOC PROVIDES ADDITIONAL GUIDANCE REGARDING PSYCHIATRIC DISABILITIES

BY THOMAS D. SCHNEID

Are fire service employees protected by the Americans with Disabilities Act (ADA) if they are hostile or antisocial on the job? Are emergency medical services employees protected by the ADA if they have “poor judgment”? Can a fire organization be required to hire an additional employee to assist a disabled employee with the demands of the job? These are but a few of the questions clarified in the recent “must read” Equal Employment Opportunity Commission (EEOC) publication The Americans with Disabilities Act and Psychiatric Disabilities.

Although the interpretations the EEOC provides with regard to mental disabilities are not binding on the courts, they are binding on the EEOC and its investigators and provide exceptional guidance for fire departments. In most circumstances, the courts would be reluctant to require a department to do more than the recommendations in this publication. Fire departments should review this publication and use the EEOC interpretations to assist in assessing and modifying their ADA programs.

Below is a summary of several of the key provisions of this publication of importance to fire departments:

When is a mental illness a “disability”? An employee who has “consistently high levels of hostility, social withdrawal, or failure to communicate when necessary” may be disabled according to the EEOC. Normally, “some unfriendliness with coworkers or a supervisor” is not enough. Additionally, an employee may be disabled if he is “easily or frequently distracted by irrelevant sights or sounds” or if his mind frequently goes “blank.” However, trouble concentrating especially when tired or during long meetings is usually not a disability. Additionally, behaviors such as high stress level, chronic lateness, poor judgment, and irritability are not normally disabilities. However, they may be symptoms of a mental disability.

Must a company hire an additional employee to help a disabled employee to do his job? Under the EEOC`s interpretation, the answer is “probably.” A reasonable accommodation may include paying for a “temporary job coach” to assist the employee in adjusting to the demands of the job.1

Can mentally ill employees be disciplined for misconduct? The interpretation is simply “yes,” even if it was an employee`s disability that caused the work rule infraction, as long as the rule is “consistent with business necessity” and the company enforces the rule equally for all employees.

Can a family member or physician request an accommodation for an employee? The interpretation again is simply “yes.” If a family member or physician asks the employer for an accommodation, the company then possesses “notice” that the employee is disabled and needs an accommodation. However, the employee must agree that he is disabled and must want the requested accommodation.

Can a company require an examination by its own doctor? The company may require an examination. However, the company must pay for the cost of this examination.

These are just a few of the interpretations contained in the EEOC guidance publication. A copy of this important publication is available from your local EEOC office or through your local legal counsel. It is a definite “must read” for all department personnel who are responsible for your ADA program. n

Endnote

1. Several commentators question whether the courts would require the employer to pay for a job coach. However, permitting an employee to bring a coach to the job at his/her expense may be feasible.

n THOMAS D. SCHNEID is an associate professor and lawyer with the Department of Loss Prevention of Eastern Kentucky University`s Fire and Safety Engineering Technology Program. He has a bachelor`s degree in education, a master`s degree and a certificate of advanced study in safety, a law degree, an LLM (master of laws) degree in labor and employment law, and a Ph.D. in environmental engineering. He has 14 years of experience as a consultant for general industry.

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