According to Laura Mancuso, a consultant who has advised hundreds of employers on compliance with the ADA, these concerns are not justified. Mancuso noted that accommodations for workers with psychiatric disabilities are, in most cases, inexpensive or free.
An employee with psychiatric problems may initially need more time from supervisors or coworkers, but research shows that the need tends to fade over time.
The EEOC had been flooded with questions about the [ADA], mostly from employers, [and the EEOC] wanted to show that the law applies to people with psychiatric disabilities in exactly the same way it applies to people with physical disabilities. It applies well-established ADA principles in the context of psychiatric disabilities. Ann Reesman, general counsel for the Equal Employment Advisory Council, a group of about 300 large employers, said the Psychiatric Enforcement Guidance was helpful, because it gave us insights into the EEOCs position on things and how to avoid running afoul of the agency. It creates this uncertainty, for example, by suggesting that a condition need not be included in the American Psychiatric Associations current edition of the DSM in order to be a covered mental disability under the ADA, by providing that personality disorders may be covered disabilities, and by expanding the list of major life activities, to include such things as sleeping, concentrating, and getting along with other people. The National Federation of Independent Business issued a statement calling the new guidelines lengthy, confusing and dangerously vague, leaving small business wide open to the risk and cost of frivolous litigation. Meisinger, senior vice president of the Society for Human Resource Management, which represents personnel directors at companies of all sizes, said the Psychiatric Enforcement Guidance creates confusion for employers, especially small employers who dont have any special expertise in ADA provisions.
Jonathan Mook, a lawyer counseling both large and small employers in their attempts to deal with compliance under the ADA, testified at the Commissions ADA hearing that the EEOCs guidelines represent at least a good initial step in the area of trying to clarify and provide guidance to employers on what obligations are under the statute, and how the statutory term[s] should be interpreted. Mook noted, however, that based upon my conversation with employers, in dealing with this area, I think there are many aspects of that guidance that really fail to take into account the real-world problems that employers experience in dealing with individuals who have or claim to have psychiatric disabilities. The Psychiatric Enforcement Guidance, however, did not depart dramatically from existing ADA case law, according to Robert L. C., firm that represents management nationwide in ADA, EEOC, employment, and labor law matters. Dunston observed that most attorneys specializing in the ADA, whether for plaintiffs or management, tend to agree that much of the Psychiatric Enforcement Guidance is consistent with ADA case law and the Rehabilitation Act. Dunston believes the strong reaction to the Psychiatric Enforcement Guidance was based on employers realization of the breadth of the ADA and its potential implications in the workplace.
In response to the OTA report and the lack of understanding by employers and employees about the ADA protections for individuals with psychiatric disabilities, the EEOC issued a publication titled EEOC Enforcement Guidance: The Americans with Disabilities Act and Psychiatric Disabilities, in March 1997.
Consistent with the issuance of its other ADA enforcement guidance, the EEOC did not use formal notice and comment rulemaking to issue its Psychiatric Enforcement Guidance.
Labor attorney James Mc Donald testified that a listing in the DSM-IV should be required and is only a starting point for determining whether a condition is a mental impairment.
The ADA defines psychiatric disability as a mental impairment that substantially limits one or more of the major life activities of [an] individual; a record of impairment; or being regarded as having such an impairment.
The examples of impairments in the Psychiatric Enforcement Guidance include major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia, and personality disorders.
ADAs legislative history and at least one court decision recognize that Congress intended that only mental disorders as defined in the [DSM-IV] may qualify as mental impairments potentially covered by the ADA. Mc Donald would narrow the category of impairment because he believes that personality disorders, which are listed in the DSM-IV, should be excluded from ADA coverage.
The Psychiatric Enforcement Guidances inclusion of personality disorders as impairments, Mr.