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Attempt to clarify ADA leads to confusion.

It's a good thing employers, lawyers, and judges have access to federal guidelines to help them handle Americans with Disabilities Act (ADA) claims for workers who have mental and emotional problems.

Early newspaper reports on the Equal Employment Opportunity Commission's (EEOC) guidelines made it sound like office slackers -- who are sleepy, rude, or chronically tardy -- would be protected from discipline under the ADA There is a grain of truth in these reports, according to Peggy Mastrioanni, associate legal counsel for the EEOC. The agency guidelines, issued in late March, direct employers to be alert to this kind of worker behavior because it may actually be a symptom of more serious underlying conditions, such as depression or anxiety.

Still, it's up to the worker to tell his or her employer of any psychiatric impairment that may require special accommodations for disabilities while on the job. Even then, the employer can ask for documentation to confirm the disability.

We're telling everyone to read what's in the guidelines," Mastrioanni said. "Not everybody with a problem is covered. An employee saying he's having trouble with his boss is not enough to trigger the act."

Mastrioanni said confusion about the EEOC guidelines resulted when a wire service report said the guidelines "broadened the scope" of the ADA. "Suddenly there was a media frenzy because the story implied that we were saying the ADA covered people with psychiatric disabilities for the first time. There's nothing new here. The ADA unequivocally covers people with psychiatric disorders and it always has.

"The controversy must be an indication that the public still feels uncomfortable with the ADA itself" and with the stigma that mental and emotional problems carry, she said. "There's no question that the resurfacing of ADA issues [in the media] struck a chord. The debate is probably a healthy thing. There wasn't a lot said about psychiatric disabilities in the congressional debate."

The guidelines -- which interpret the ADA rather than tell lawyers, judges, and employers how the law must be applied -- address such questions as what constitutes a psychiatric disability and when employers can ask employees about their emotional problems or require medical tests.

As with physical disabilities, a mental impairment rises to the level of a disability if it substantially limits a major life activity, such as thinking, learning, sleeping, or working, according to the guidelines.

This is not news to anyone familiar with the ADA, said Mastrioanni, but the guidelines delve into some of the fuzzier issues surrounding psychological impairments and job discrimination. The EEOC tried to offer clarity by giving examples of workplace scenarios that have posed dilemmas for both employers and employees. Samples of questions and partial answers taken from the guidelines follow.

* How long does a mental impairment have to last to be substantially limiting? "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."

* When may an employer lawfully ask an individual about a psychiatric disability under the ADA? The guidelines answer this question in three pages of text, which include numerous examples.

* When an individual decides to request reasonable accommodation, what must he or she say to start the process? "An individual may use `plain English' and need not mention the ADA or use the phrase `reasonable accommodation.'"

* Is it a reasonable accommodation to provide a job coach? "Yes. An employer may be required to provide a temporary job coach to assist in the training of a qualified individual with a disability as a reasonable accommodation, barring undue hardship [on the employer]."

Copies of the guidelines are available on the Internet at http://www.eeoc.gov or by calling the EEOC at (800) 669-3362.
COPYRIGHT 1997 American Association for Justice
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1997, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Title Annotation:Americans with Disabilities Act
Author:Brienza, Julie
Publication:Trial
Date:Jul 1, 1997
Words:619
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