Most guidance on employer communication with an employee about a disability starts from the premise that the employee has requested accommodation and the employer needs more information in order to provide appropriate accommodations. An Equal Employment Opportunity Commission (EEOC) guidance document states that an employer may ask for disability-related information, including information about psychiatric disability, when the employer has a reasonable belief, based on objective evidence, that an employee’s ability to perform essential job functions is impaired by a medical condition. However, best practices suggest focusing on performance or behavior (i.e., what is happening) rather than trying to determine the underlying cause (i.e., why it is happening) because an employee without a disability may have a cause of action under the Americans with Disabilities Act (ADA) if evidence shows that the employer perceived the employee as having a disability.When the employee self-identifies a mental disability – follow the ADA
The ADA applies to local public libraries. The ADA, Title I, prohibits an employer from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, job assignments, pay, benefits, job training and other employment practices. The employer must provide reasonable accommodation for a known disability of a qualified applicant or employee if it would not impose an “undue hardship” on library operations.

Does the employee have a mental impairment under ADA?
The ADA defines “mental impairment” to include “[a]ny mental or psychological disorder, such as… emotional or mental illness.” Examples of “emotional or mental illness” include major depression, bipolar disorder, anxiety disorders (e.g., panic disorder, obsessive compulsive disorder and post-traumatic stress disorder), schizophrenia and personality disorders.

To be considered a disability under the ADA, an impairment must substantially limit one or more major life activities. An impairment is substantially limiting if it lasts for more than several months and significantly restricts the performance of one or more major life activities during that time.

Interacting with others is considered a major life activity. An individual’s ability to interact with others is substantially limited if, over the long term, due to the impairment, he or she is significantly restricted as compared to the average person in the general population.  Some unfriendliness with co-workers or a supervisor would not, standing alone, be sufficient to establish a substantial limitation in interacting with others. An individual would be substantially limited, however, if his or her relations with others were characterized on a regular basis by severe problems; for example, consistently high levels of hostility, social withdrawal or failure to communicate when necessary.

Confidentiality
Employers must keep all information concerning medical history of employees, including information about psychiatric disability, confidential under the ADA. This includes medical information that an individual voluntarily tells his or her employer. A limited exception to the ADA confidentiality requirements allows you to tell supervisors and managers about necessary restrictions on the work or duties of the employee and about necessary accommodations.

If other employees ask questions about a coworker who has a disability, the employer must not disclose any medical information in response. Nor can the employer tell other employees it is providing a reasonable accommodation for a particular individual, as that discloses the existence of a disability. In response to coworker questions, an employer may explain it is acting for legitimate business reasons or in compliance with federal law.

Reasonable accommodations
An employer must provide a reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability unless it can show that the accommodation would impose an undue hardship. Reasonable accommodations might include modifying the person’s work schedule, modifying certain non-essential policies with regard to the employee or adjusting the level or type of supervision provided to allow a more helpful structure. Reassignment may be considered as a reasonable accommodation under some circumstances.

When the employee has not self-identified a mental disability – focus on job performance
From a legal standpoint, an employee thought to have a mental disability must be treated like any other worker. You must focus on the individual’s job performance and behavior without making assumptions about underlying medical conditions or trying to diagnose the person. Approach conversations with the legitimate goal of finding the best fit between people and jobs, independent of the possibility of a psychiatric disorder.

Questions you can ask include:

• Is there anything you need to be able to keep doing your job?
• How can we support you in improving your job performance?
• How can we help you become more effective in your job?
• Is there anything preventing you from performing your job?

When you hold a conversation based on job performance, the employee may reveal the existence of a disability or condition covered by the ADA. The employee doesn’t need to identify the specific diagnosis, refer specifically to the ADA, or use the term “accommodations” in order for ADA protections to kick in. If an employee says “I have a condition and I need time off to get it under control” or to “regulate my meds” that is enough to be considered a request for accommodations under the ADA. The employer may then ask for reasonable documentation concerning the employee’s disability and functional limitations.

Some employees will choose not to disclose a disability. Other useful information, not related to a disability, may also surface in response to questions about job performance.

Employees may be more likely to disclose their needs, if not the diagnosis, if they know about your nondiscrimination policy and what will happen if they ask for an accommodation.

A library specific example from EEOC guidance
A reference librarian frequently loses her temper at work, disrupting the library atmosphere by shouting at patrons and co-workers. After receiving a suspension as the second step in uniform, progressive discipline, she discloses her disability, states that it causes her behavior and requests a leave of absence for treatment. The employer may discipline her because she violated a conduct standard – a rule prohibiting disruptive behavior towards patrons and coworkers – that is job-related for the position in question and consistent with business necessity. The employer, however, must grant her request for a leave of absence as a reasonable accommodation, barring undue hardship, to enable her to meet this conduct standard in the future.

EAP referrals
If your employees have access to an Employee Assistance Plan (EAP) you may want to refer the employee to the EAP. Be careful to word the referral in terms of “discussing workplace problems.” Do not refer the employee for “counseling” or for “personal problems” as this type of referral suggests you believe there may be a disability. The EAP can broaden the focus to disability related issues without the liability that you, as an employer, could potentially face under the ADA.

If you have additional questions specific to this situation I encourage you to contact your library’s attorney.

Resources:
EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities
Human Resource Executive On Line
The Job Accommodation Network (JAN) is a free consulting service from the U.S. Department of Labor’s Office of Disability Employment Policy providing individualized workplace accommodation solutions, as well as information on the ADA and services related to employment for people with disabilities. Call 1-800-526-7234 (V) or 1-877-781-9403 (TTY) for more information.

This blog post was written by Cheri Harris, certification program director/legal consultant, Indiana State Library. Cheri can be reached by email.