Part 1: Mental Health Disabilities in Pre-Employment

In America, approximately one in four adults suffers from a mental health disorder.¹ This should understandably be a large factor for business owners when it comes to planning their employment practices. Moreover, mental disorders are associated with similar or greater negative impact on daily functioning than physical disabilities such as arthritis or heart disease.² Mental health disorders are additionally much more difficult to identify or respond to than most physical impairments and so many go unreported or unnoticed. However, this can lead to a loss in productivity that can cost the employer in the long run.³ In this article, we will discuss ways to protect those with mental health disorders, as well as the rights of the employer.

The Americans with Disabilities Act

The Americans with Disabilities Act (ADA) applies to most employers with 15 or more employees.⁴ There are also similar state laws which may apply to employers of all sizes. The ADA provides a “comprehensive national mandate for the elimination of discrimination against individuals with disabilities.^”5 The Act prohibits discrimination on the basis of an individual’s disability, which includes failing to reasonably accommodate an employee after the employee has notified the employer of the need for an accommodation.⁶ An individual qualifies for protection under the ADA if he or she has a physical or mental impairment “that substantially limits one or more major life activities of such individual.”⁷ The Act is broadly construed,⁸ consistent with congressional intent that individuals with disabilities have “equality of opportunity, full participation, independent living, and economic self-sufficiency.”⁹ The Act also covers individuals who have disabilities that are episodic in nature,¹⁰ which is especially important for individuals with disabilities that impair their mental health. Under this standard, courts generally will not quibble over whether an individual meets the strictest definition of disability, but rather will focus on determining whether discrimination has occurred.¹¹ Thus, if an individual is qualified for a position, that individual should receive equal consideration for that position regardless of disability status. An individual is considered “qualified” if that person can perform the essential functions of the job with or without a reasonable accommodation.¹²

Pre-Employment Prohibitions

In the pre-employment stage, employers have special considerations. Pre-employment procedures include the screening of an individual applicant and post-offer, pre-acceptance procedures. Before an employer screens an applicant, the employer should consider the following:

An employer may not require an applicant to pass certain types of assessments, including psychological profiles designed to identify mental disorders or impairments.¹³ Tests that simply identify personality types, relevant skills, or strength should be fine (for example, Strengths Finder or the DISC Profile).

This does not take psychological testing off the table completely, however. An employer may screen an applicant using such tests after the employer has offered the individual a position with the company.¹⁴ Note, however, that any such tests must be given to all employees, not just select individuals who the employer may suspect of having a disability.¹⁵ However, not allowing a candidate to proceed with employment based on such tests raises a significant risk of disability discrimination.

If the employee discloses a disability or it is otherwise obvious that the person will need a disability accommodation, the responsibility is on the employer to engage in an “interactive dialogue” to determine what accommodation would be feasible.¹⁶

Usually, a simple denial of any accommodation would be inadvisable. Rather, the employer should discuss with the employee what accommodation would be possible, or if no accommodation is possible without undue hardship to the employer, then that must also be explained.

Note, however, that this does not mean that the employer must accept any accommodation suggested by the employee.¹⁷ Some accommodations will not be practical and will be an undue hardship. Whether the employer offered enough will be a very fact-specific evaluation.

In Part 2, we will discuss mental health disabilities and the ADA as it applies to individuals who have already accepted the job and have begun working.

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¹ Mental Health Disorder Statistics, available at https://www.hopkinsmedicine.org/health/wellness-and-prevention/mental-health-disorder-statistics

² M.A. Buist-Bouwman, R. De Graaf, et. all, Functional Disability of Mental Disorders and Comparison with Physical Disorders, available at https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1600-0447.2005.00684.x

³ Ronald C. Kessler, PhD, et al., The Prevalence and Effects of Mood Disorders on Work Performance in a Nationally Representative Sample of US Workers, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1924724/ (Suggesting that major depression alone is costing U.S. employers between $31 and $51 billion per year in lost productivity); See also Simon GE, Barber C, Birnbaum HG, et al., Depression and work productivity: the comparative costs of treatment versus nontreatment., J Occup Environ Med. 2001, available at https://journals.lww.com/joem/Abstract/2001/01000/Depression_and_Work_Productivity__The_Comparative.2.aspx.

⁴ 42 U.S.C. § 12101

⁵ § 12101(5)(A)

⁶ § 12101; See also 29 CFR § 1630.1 (“The ADA as amended, and these regulations, are intended to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities, and to provide clear, strong, consistent, enforceable standards addressing discrimination.”).

⁷ § 12102(1)(A).

⁸ § 12102(4)(A) (“The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act.”)

⁹ § 12101(a)(7).

¹⁰ § 12102(4)(D).

¹¹ Jacobs v. North Carolina Administrative Office of the Courts, 780 F.3d 562, (4th Cir. 2015).

¹² 29 CFR § 1630.14(a)

¹³ See 42 U.S.C. § 12112(d)(1) (prohibiting “medical examinations and inquiries” as a condition of employment); See also Karraker v. Rent-A-Center, Inc., 411 F.3d 831, 837 (7th Cir. 2005) (finding that a test designed to reveal mental illness was a “medical examination” within the meaning of the ADA).

¹⁴ EEOC, Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada (hereinafter “Enforcement Guidance”).

¹⁵ See 42 U.S.C. § 12112(d)(3)(A).

¹⁶ See Enforcement Guidance; See also Canny v. Dr. Pepper/Seven-Up Bottling Grp., Inc., 439 F.3d 894, 902 (8th Cir. 2006) (“Under the ADA, an employer must engage in an interactive process to identify potential accommodations that could overcome the employee’s limitations.”)

¹⁷ EEOC, The ADA: Your Responsibilities as an Employer, available at https://www.eeoc.gov/publications/ada-your-responsibilities-employer.

Featured Image by Rebecca Sidebotham.