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HR MATTERS E-TIPS
THIS WEEK’S E-TIP: Mental Illness under the ADA and FMLA
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
 
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THIS WEEK’S E-TIP: Mental Illness under the ADA and FMLA

Mental illness may be covered as a disability under the ADA or as a serious
health condition under the FMLA. Find out when an accommodation or
leave may be required to help employees cope with these mental health
issues.
 
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THIS WEEK’S E-TIP: Mental Illness under the ADA and the FMLA

You most likely are familiar with your duties under the Americans with
Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) to
provide leave to employees with physical impairments. But, are you
aware that you may have to provide leave to employees who are dealing
with mental health issues as well? (Download free Employee
Counseling model policy
.) Both the ADA and the FMLA protect
employees who have mental impairments as well as physical problems.
Find out below the extent of your duty to provide time off for mental
health counseling under these laws.

* ADA Requirements *

The ADA applies to employers with 15 or more employees and prohibits
discrimination against qualified disabled employees with regard to sick
leave or other leaves of absence. The ADA also requires you to make
reasonable accommodation to otherwise qualified disabled employees to
enable them to perform the essential functions of the job.

Under the ADA, a disability includes either a physical impairment or a
mental impairment, including a psychological disorder or emotional or
mental illness, that substantially limits one or more of an individual’s
major life activities. According to the Equal Employment Opportunity
Commission’s (EEOC) Enforcement Guidance on the ADA and
Psychiatric Disabilities (Enforcement Guidance), mental impairment
encompasses major depression, bipolar disorder, anxiety disorders
(including panic disorder, obsessive-compulsive disorder, and post-
traumatic stress disorder), schizophrenia, and personality disorders.

So, an employee who has a psychological, emotional, or mental disorder
may be considered “disabled” and be entitled to a reasonable
accommodation. A reasonable accommodation may include a leave of
absence, modified work schedule, or redistribution or reallocation of the
marginal functions of the job. However, a stress-free work environment
typically is not considered a reasonable accommodation under the ADA.

The EEOC Enforcement Guidance distinguishes between the symptoms
of an ADA-protected disability and the personal “traits” or “behaviors”
that might be found in an average person in the general population.
Thus, under the ADA, “mental impairment” generally does not apply to
behaviors such as drug use, animosity toward one’s supervisor, or
chronic lateness; to traits such as irritability or unfriendliness; or to
conditions commonly resulting from stress. Stress might constitute a
disability, however, if the employee is diagnosed by a psychiatrist as
suffering from an identifiable stress disorder.

The ADA also covers alcoholics and rehabilitated drug addicts as
individuals with disabilities. (Download free Drugs, Narcotics, and
Alcohol model policy
.) Thus, employers may have to provide reasonable accommodation to alcoholics and recovered drug abusers, such as an extended lunch hour so that they
can attend support group meetings. However, individuals who are currently
using drugs illegally are not protected by the ADA.

Leaves granted to a disabled employee as an ADA accommodation also
may count against the employee’s 12-week FMLA entitlement if the
impairment qualifies as a “serious health condition.” (See discussion,
below.) Conversely, if a disabled employee on FMLA leave cannot
return to work after 12 weeks, the employee may be entitled to an
extended leave as an ADA accommodation.
 
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* FMLA Requirements *

The FMLA generally covers employers with 50 or more employees in 20
or more workweeks per year, in the current or preceding calendar year,
and all public agencies and schools. Eligible employees may take up to
12 weeks of unpaid leave under the FMLA for their own “serious health
conditions” or to care for a parent, spouse, or child who has a “serious
health condition.”
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A “serious health condition” includes any “illness, injury, impairment, or
physical or mental condition” that involves inpatient care or continuing
treatment by a “health care provider.” But, a mental health problem, like
a physical impairment, must require hospitalization or ongoing treatment
that meets the FMLA definition, such as a period of incapacity of more
than three consecutive calendar days involving (i) treatment two or more
times by, or under the orders of, a health care provider, or (ii) treatment
by a health care provider on at least one occasion that results in a
supervised regimen of continuing treatment. A “health care provider” can
include clinical psychologists and clinical social workers, as well as
physicians.

Employees who receive counseling or treatment for alcohol or substance
abuse may be eligible for FMLA leave if the problem meets the definition
of a serious health condition. However, leave is allowed only for
treatment and not because of the employee’s use of the substance.

Mental illness from stress also may be a serious health condition, but
only if the employee undergoes inpatient care or continuing treatment by
a health care provider. (Download free Employee Counseling model
policy
.)

Note, too, that since the FMLA also permits leave to care for a spouse,
child, or parent who has a serious health condition, eligible employees
also may be entitled to take leave to attend counseling sessions with a
family member who is undergoing treatment for alcohol or substance
abuse, mental illness, or other serious health condition.

Employees who are entitled to take FMLA leave for a serious health
condition may take leave on an intermittent or reduced schedule basis.
Intermittent leave is taken in periodic blocks of time, such as a day or a
few hours, whereas a reduced leave schedule decreases the employee’s
daily or weekly work hours. These types of leave may be taken only with
the employer’s permission, unless the arrangement is “medically
necessary.”

 
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Subscribers to the Personnel Policy Manual (print/online) and HR Policy Answers on
CD can find more information on counseling for mental health issues in
Employee Counseling, Chapter 506, note 14.

Not a subscriber? If you would like to order one of our policy chapters,
go to: http://www.hrpolicyanswers.com.

If you have any questions, please call us at 1-800-437-3735. We'll be happy to help you.
 
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Information provided in HR Matters E-Tips is researched and reviewed
by the HR experts at Personnel Policy Service as well as employment
law attorneys. However, it is not intended as legal advice. Readers are
encouraged to seek appropriate legal or other professional advice.

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