Managing under the disabilities act.

New law and EEOC guidelines signal cautions for finance and personnel managers.

Do you have an employee who's tardy, hostile, sleepy, or distracted? Do you think you can warn, suspend, or terminate the employee? Believe it or not, you may be wrong if these conditions are caused by

Federal law protects employees who suffer with mental disabilities - even if they sleep on the job. If you're a controller or management accountant, you may become frustrated by the financial obligations resulting from the mental impairment provisions of the Americans with Disabilities Act and the complex guidelines that the Equal Employment Opportunity Commission has handed down to facilitate the law.

Employees suffering from mental disabilities may be entitled to special accommodations. Failure to comply with the requirements of the ADA and the recently issued EEOC guidelines concerning these accommodations may subject your company, in the worst case, to litigation or financial damages.

Because of the increasing number of claims filed by employees alleging mental disabilities, the EEOC issued guidance on an employer's obligation to an employee with psychiatric conditions. While most of us are familiar with accommodations such as ramps and wheelchair accessible restrooms for people with physical disabilities, the employment-based needs for people with mental disabilities are much less clear.

MENTAL IMPAIRMENT OR NOT

The ADA defines "mental illness" as (a)ny mental or psychological disorder, such as emotional or mental illness." The EEOC, in offering up its guidance, references the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders to provide examples of mental impairment. Major depression, bipolar disorder - once called manic depressive disease - anxiety disorders, obsessive compulsive disorder, schizophrenia, and personality disorders all constitute disabling mental conditions according to the meaning of the ADA.

Beyond these relatively clear categories, there are many gray areas. Stress, irritability, chronic lateness, and poor judgment aren't mental impairments, but they may be linked to mental disability if they limit a major life activity - particularly over a long period of time. Learning, thinking, concentrating, interacting with others, caring for oneself, speaking, performing manual tasks, working, or sleeping are all major life activities that can be disrupted by a mental disability. This can affect performance on the job.

Here's an example. An employee has had a major depression for almost a year. He's been intensely sad and withdrawn, except for going to work, and suffered serious bouts of insomnia as well as problems concentrating. The effects of this major depression are severe and endure long enough to be substantially limiting. The employee claims that his mind wanders frequently. He's often distracted by irrelevant thoughts. These problems result in repeated errors at work on detailed or complex tasks - even though he's reprimanded. According to the EEOC, the employee's ability to concentrate is significantly restricted as compared to the average person in the general population, and, therefore, the employee suffers from a disability.

Temporary conditions, though - for example, distress from the end of a romantic relationship - aren't sufficiently limiting and aren't a disability under the ADA. This makes sense. Sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and disorders relating to the illegal use of drugs are mental conditions, which Congress, when drafting the law, excluded as mental disabilities. This also makes sense.

But what about an employee with chronic depression who has trouble concentrating when he's tired or during long meetings? The EEOC says this employee is not disabled. While the employee's ability to concentrate may be slightly limited because of his depression, he isn't any more restricted than the average person in the general population, the EEOC says. Go figure! For financial managers and other intelligent professionals, evaluating the fine distinctions between these cases is likely to cause them to scratch their heads.

TIPS FOR EMPLOYERS

So what's an employer to do? Answering that question is tough because reasonable accommodation is determined on a case-by-case basis. It may include physical changes to facilities; changes to workplace policies, procedures; or practices; time off from work; or a modified work schedule. An employee on medication for a psychiatric disability may experience grogginess or lack of concentration in the morning. Rescheduling work hours with a later start time may work to the advantage of both the employer and the employee.

A bit of good news: An employer doesn't have the responsibility to make sure the employee takes medication for his disability. And, reasonable accommodation doesn't require an employer to lower standards or remove essential functions of a job. But the employer may be required to reassign an employee to a different position. And, as a reasonable accommodation, an employer may even be required to provide a temporary job coach to assist in the training of a qualified individual with a disability.

Determination of a disability should be substantiated with evidence about the individual's impairment - and not mere generalizations about the condition itself. Reliable evidence about limitations at home, work, or other settings and how they are linked to the impairment can come from the individual, family, friends, or coworkers. Expert opinions may be helpful but aren't necessary.

Yet an employer's hands are tied. An employer shouldn't ask job applicants questions about emotional illness or psychiatric disability. If, on the other hand, an applicant voluntarily discloses an impairment or asks for reasonable accommodation for a mental disability, an employer may ask for documentation from a psychiatrist, psychologist, or other licensed mental health professional. But the employer may request only limited information concerning the applicant's needs for reasonable accommodation. An employer also may request a post-offer, pre-employment medical examination, but only if it's required for all entering employees in the same job category.

During employment, an employer may make a disability-related inquiry or require a medical examination if there's reason to believe from objective evidence that the employee's ability is impaired or poses a direct threat to himself or others because of a medical condition. For example, a limousine service employed a chauffeur who had a bipolar disorder. When the employee was driving a group of diplomats to around-the-clock meetings, he had a manic episode that resulted in recklessly and repeatedly endangering himself and the clients. The chauffeur took a short leave of absence, then returned to work and his usual high level of performance. The company wanted to post the employee to a similar around-the-clock assignment but was concerned that it would initiate another manic episode. Furthermore, the employee's condition didn't seem to have changed. In these circumstances, management can inquire about the driver's disability or require a medical examination.

The EEOC states - although without citation to any research - that maintaining satisfactory conduct and performance typically isn't a problem for individuals with psychiatric disabilities. Nevertheless, the EEOC does recognize violence, threats of violence, or stealing as causes for disciplinary action - as long as the employer imposes the same discipline on employees without mental disabilities.

Other cases of misconduct by impaired employees may not be so obvious. Take, for instance, the EEOC example of a warehouse employee who has no customer contact and minimal contact with other employees. His appearance becomes increasingly disheveled and his behavior increasingly abrupt and rude over a period of several weeks, although he continues to do his job. The company handbook specifies that employees should have a neat appearance and be courteous to each other. When the employer disciplined him for misconduct, he claimed that his worsening disability caused the behavior. In this case, the EEOC states the rigid application of company rules would violate the ADA because the dress code and coworker courtesy rules are neither job related nor consistent with business necessity.

MUM'S THE WORD

The one certainty: In all cases, the employer must keep all medical and psychiatric information about an employee confidential - even in the face of questions from other employees concerning what appears to be preferential treatment for the disabled worker. The ADA confidentiality provisions prohibit disclosure, with the following exceptions:

1. Supervisors and managers may be told about necessary restrictions on the assignments and duties of the employee and about necessary accommodations.

2. First-aid and safety personnel may be told, if the disability might require emergency treatment.

3. Government officials investigating compliance with the ADA must be given relevant information on request.

Employers may not tell employees why the company is providing a reasonable accommodation for an individual. They may say the company is acting for legitimate business reasons or in compliance with the law. To be on the safe side, the EEOC suggests companies include an explanation of the ADA in an employee handbook or during employee orientation or training.

UNDERSTAND YOUR OBLIGATIONS

Feeling frustrated concerning the meaning and the application of the law when it comes to accommodating employees with mental disabilities without disrupting your hiring policies, your day-to-day operation, and the morale of your other staff members? Take comfort in knowing you're probably not alone. The mental impairment provisions of the ADA and the guidance issued by the EEOC are complex. But regardless of a lack of clarity, the law and the guidelines that now accompany it impose significant obligations on employers and supervisors and on the controllers and other financial professionals who maintain overall financial responsibility for a company.

Rebecca K. Jude is a shareholder with the firm of Jude and Coco, P.A., Hattiesburg, Miss.

Chauncey M. DePree, Jr., is a professor at the School of Professional Accountancy, University of Southern Mississippi, Hattiesburg, Miss.