Psychiatric disabilities in the federal workplace: employment law considerations.

• Author: Turner, Miranda W.

1. INTRODUCTION

   According to the National Institute of Mental Health ("NIMH"), in any given year, approximately 22.1% of adult Americans suffer from a mental disorder that would be diagnosable according to DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, FOURTH EDITION ("DSM-IV") criteria sets ... Approximately 9.5% of the U.S. population aged eighteen and over suffers from a depressive disorder (defined by the NIMH as including major depressive disorder, dysthymic disorder, and bipolar disorder) during any given year. (2) An estimated 13.3% of Americans aged 18-54 suffer from an anxiety disorder (defined by NIMH as including panic disorder, obsessive compulsive disorder, post-traumatic stress disorder, generalized anxiety disorder, and phobias) during any year. (3) Approximately 1.1% of American adults suffer with schizophrenia. (4) The effect of mental illness on the American worker is significant: four of the ten leading causes of disability in developed countries are psychiatric illnesses, specifically major depression, bipolar disorder, schizophrenia, and obsessive-compulsive disorder. (5) This article discusses the issues employment lawyers may encounter dealing with mental illness in the work place. Specifically, this article examines the Rehabilitation Act as it applies to psychiatric disabilities or disorders. In the event the Rehabilitation Act does not apply to the mental illness, employment lawyers should examine whether the Family Medical Leave Act applies to the facts and circumstances. Finally, this article addresses the Workers Compensation law and points out that another remedy for the employee, as well as an area for research for the attorney.

   Given the prevalence of mental disorders in modern society, it seems likely that employment law attorneys, including those working for the federal government, will encounter employment law issues related to psychiatric conditions suffered by an employee or employees in their organizations. Statistics bear this presumption out, at least with regard to claims of discrimination. According to the Equal Employment Opportunity Commission ("EEOC"), approximately 12.7% of Americans with Disabilities Act ("ADA") charges filed with that agency between June 1992 and September 30, 1996 involved mental or psychiatric impairments. (6) With respect to the federal government, in 1999, 1,990 formal complaints filed with the EEOC involved claims of discrimination due to mental disability; that amounts to 3.2% of the total complaints filed, and approximately 12% of the Rehabilitation Act claims filed for that year. (7) While the number of on the job psychiatric illnesses and injuries reported by private industry to the Department of Labor was quite low, days lost because of these illnesses were in some cases quite high. For instance, although the reported rate of "neurotic reaction to stress" ranged from .3 to .7 per 10,000 over the ten-year period from 1992-2001, the median days lost due to such condition ranged from 10-33 over the same period. Anxiety, stress, and neurotic disorders were reported at a rate ranging from .5 to 1 per 10,000 over that same time period, and median days lost as a result ranged from 15-48. Median days lost for posttraumatic anxiety ranged from zero (no reported cases), to 120. (8) A possible explanation for the low rate of reported occupational disease or illness with regard to psychiatric conditions could be due to a failure of the employee or employer to link the condition with the occupational environment. Another possible explanation is failure to report psychological injury suffered at work due to fear of stigma, or because the employee does not want the additional stress of a contested worker's compensation claim. (9) It has been estimated that the economic costs of lost productivity at work, home, and school due to mental illness was approximately $78.6 billion in 1990; approximately 80% of these costs stemmed from disability. (10)

   Determining whether an individual is disabled, and, if so, to what extent performance and conduct deficiencies must be accommodated, or what accommodations are reasonable and necessary, can be difficult in cases where the alleged disability is psychiatric in nature. Particular difficulties have arisen in addressing what is reasonable accommodation with regard to stress reduction, interpersonal difficulties, and scheduling. (11) A major component of many mental illnesses is that they can be triggered or worsened due to environmental stressors. (12) Additionally, the issue of accommodation is further complicated because a failure to accommodate a psychiatric condition, either due to undue hardship or because the condition does not meet the definition of disability under the Rehabilitation Act, may aggravate the condition in such a manner as to entitle the employee to compensation under federal worker's compensation and/or disability statutes. (13) Therefore, it would be wise for the employment lawyer to take into account the costs of a potential worker's compensation or disability claim, when considering possible accommodations for an employee with a psychiatric disorder. While a requested accommodation may not be mandated by the Rehabilitation Act, it may be advisable to consider it anyway to reduce the costs to the government if the result of failure to accommodate the mental condition would be that the employee would receive worker's compensation or disability pay. It is also important to ensure that the requirements of the Family and Medical Leave Act (14) have been followed with regard to requested leave from work due to psychiatric difficulties.

2. THE REHABILITATION ACT AND PSYCHIATRIC DISABILITIES

   The Rehabilitation Act of 1973, as amended, (15) governs disability discrimination in the federal sector. (16) In order to be covered by the Rehabilitation Act, an individual must be a qualified individual with a disability. A "disability" is defined as:

   (1) A physical or mental impairment that substantially limits one or more of the major life activities of [an] individual;

   (2) A record of such an impairment; or

   (3) Being regarded as having such an impairment. (17)

   A qualified individual with a disability is "an individual with a disability who satisfies the requisite skill, experience, and education and other job-related requirements of the employment position ... and who, with or without reasonable accommodation, can perform the essential functions of the job." (18) Although the Rehabilitation Act predated the Americans with Disabilities Act of 1990, (19) in 1992 the Rehabilitation Act was amended to provide that, "the standards used to determine whether [this section] has been violated in a complaint alleging ... employment discrimination under this part shall be the standards applied under Titles I and V ... of the Americans with Disabilities Act of 1990 ... as such sections relate to employment." (20)

   1. Is the Employee a Qualified Individual With a Disability?

      To determine whether the Rehabilitation Act covers an employee, you must determine 1) whether the individual has an impairment, 2) what (if any) major life activity is substantially limited by the impairment, and 3) whether the individual is capable of performing the essential functions of the job, with or without accommodation. It should be noted that the Rehabilitation Act and ADA both exclude certain conditions from the definition of "disability," so that persons suffering from these conditions are not protected against discrimination on the basis of those conditions. The excepted conditions are transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from the current illegal use of drugs. (21) Note that past use of illegal drugs is not excepted from the definition of disability, nor is current or past alcoholism. (22) While the Rehabilitation Act initially would seem to be a useful tool for mentally ill employees to gain accommodation within the workplace, a review of the applicable case law illustrates that the mentally ill employee has to overcome significant obstacles to successfully prove discrimination. (23)

      1. Is There an Impairment?

         The EEOC has addressed the question of what constitutes a mental or psychological impairment in its Enforcement Guidance on the Americans With Disabilities Act and Psychiatric Disabilities. Personality traits and behaviors alone are not considered mental impairments, although they may be symptoms of an impairment. (24) The EEOC Enforcement Guidance specifically lists irritability, chronic lateness, and poor judgment as examples of traits that are not disabilities. (25) Neither are irresponsible behavior, poor impulse control, (26) or inability to tolerate stress (27) considered disabilities. Examples of conditions the EEOC regards as mental impairments are "major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia, and personality disorders." (28) While the EEOC Enforcement Guidance makes reference to the DSM-IV as a guide to assist in identifying mental impairments, the commission cautions that not all of the conditions listed therein are mental impairments or disabilities under the ADA and Rehabilitation Act. (29)

      2. Does the Impairment Substantially Limit a Major Life Activity?

         One law review article noted that "[t]he first and most common rationale used by courts in dismissing employment discrimination claims brought by employees claiming to have a psychiatric disability is that the employee is not in fact disabled under the ADA." (30) A review of the case law shows that a major hurdle for the mentally ill employee occurs with respect to proving that he or she suffers a condition...