EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
ADA: Definition of “Disability”; Reasonable Accommodation; Employee Misconduct
March 27, 2008
This is in response to your letter to the Equal Employment Opportunity Commission (EEOC or Commission) asking whether: (1) a state employer is required to provide “mitigation” for a veteran with post traumatic stress disorder (PTSD) who is defensive, volatile, and unable to get along with his coworkers, and (2) you are obligated to assist a veteran with PTSD who is being denied veterans’ benefits because of his hostility and frustration, symptoms you believe stem from his condition. Your first question raises the issue of whether the employee in question meets the ADA’s definition of a qualified individual with a disability and, if so, whether the employer has a duty to accommodate his disability by excusing his conduct. Because only this question raises issues under Title I of the Americans with Disabilities Act (ADA), it is the only one we will address.
Title I of the ADA, which covers private, state, and local government employers with 15 or more employees, prohibits discrimination against qualified individuals with disabilities. The ADA defines an individual with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Major life activities are basic activities that the average person can do with little or no difficulty. Major life activities that may be relevant in assessing whether PTSD is a disability might include caring for oneself, thinking, concentrating, interacting with others, sleeping, and working. Whether an impairment substantially limits a major life activity depends on the nature and severity of the impairment, the duration or expected duration of the impairment, and the permanent or long-term impact, or the expected permanent or long-term impact, of or resulting from the impairment. Any mitigating measures (such as medication) that reduce or eliminate the effects of the impairment must be taken into consideration when evaluating whether the impairment substantially limits a major life activity.
Although it appears from your description that the employee at issue has a mental or psychological impairment (“documented PTSD”), it is not clear that the impairment substantially limits a major life activity (e.g., the ability to care for himself or interact with others). The Commission has stated that an impairment substantially limits an individual’s ability to perform a major life activity if, due to the impairment, he is significantly restricted as compared to the average person in the general population. With respect to the major life activity of interacting with others, some unfriendliness with coworkers or a supervisor would not, standing alone, be sufficient to establish a substantial limitation. An individual would be substantially limited, however, if on a long-term or potentially long-term basis his relations with others were regularly characterized by severe problems, for example, “consistently high levels of hostility, social withdrawal, or failure to communicate when necessary.” See EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (March 25, 1997) at Question 9, http://www.eeoc.gov/policy/docs/psych.html. Although you state that the employee “becomes defensive, cannot get along with co-workers and displays frustration and stress factors that are perceived as volatility,” your letter does not provide information on how severe his difficulties are and how often they occur.
The employee also must be qualified for the job to be protected under the ADA. A person is a qualified individual with a disability if he can (1) satisfy the requisite skill, experience, education, and other job-related requirements of a position held or desired and (2) perform the essential functions of a job, with or without reasonable accommodation. Job-related requirements, also known as “qualification standards,” may include obtaining specific licenses or certificates as well as demonstrating certain attributes, such as the ability to work with other people or to work under pressure.
The ADA generally allows employers to develop and enforce conduct standards that are job-related and consistent with business necessity, such as prohibitions on violence, threats of violence, or destruction of property, as well as requirements of timeliness and attendance. Similarly, employers may prohibit insubordination towards supervisors and managers, forbid employees from yelling, cursing, shoving, or making obscene gestures at each other in the workplace, and require employees to show respect for clients and customers. Although an employer must provide reasonable accommodations to enable an employee to perform a job or to enjoy equal benefits and privileges of employment, reasonable accommodation does not include excusing a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity even if an employee’s disability causes him to violate the rule.
An employer, however, must provide a reasonable accommodation to enable an employee with a disability to meet a conduct standard in the future, absent undue hardship (i.e., significant difficulty or expense), assuming that the punishment for the initial violation is not termination and the employee has requested an accommodation. For example, if the employee at issue has a disability that causes him to lose his temper and violate a uniformly applied rule requiring courtesy toward coworkers, the employer may discipline him for violating the rule. However, assuming the discipline is not termination and the employee then requests time off to seek treatment, the employer must grant his request for a leave of absence, or some other effective accommodation, absent undue hardship, to enable him to meet the conduct standard in the future. If, on the other hand, the employee merely states that his PTSD is the cause of his volatility and inability to get along with coworkers but does not ask for a reasonable accommodation, the employer may, but is not required to, ask if the employee thinks that there is an accommodation that might help him avoid future misconduct.1
Finally, when the disability or need for accommodation is not obvious, the employer may obtain reasonable medical documentation to determine if the employee’s condition meets the ADA’s definition of disability, whether and to what extent the disability is affecting the employee’s misconduct, and what accommodations, if any, may be needed. 2 For example, some individuals with PTSD may need longer or more frequent work breaks to cope with stress or permission to call a therapist or counselor from time to time, even though the employer generally has a policy prohibiting personal phone calls. Others may need to telework, if the job can be done from home, on days when symptoms are particularly acute.3 If a reasonable accommodation is needed to assist the employee in controlling his behavior to prevent another conduct violation, and the employer refuses to provide one that would not cause undue hardship, the employer will violate the ADA.
I hope that this information is helpful to you. You also might want to review EEOC’s recent publication, Veterans with Service-Connected Disabilities and the ADA: A Guide for Employers (2/29/08), http://www.eeoc.gov/facts/veterans-disabilities-employers.html, which explains how the ADA applies to recruiting, hiring, and accommodating veterans with disabilities. This letter is an informal discussion of the issues you raised and does not an official opinion of the EEOC.
Christopher J. Kuczynski
Assistant Legal Counsel
ADA Policy Division
1 Although the individual with a disability generally must request a reasonable accommodation, an employer should ask whether one is needed without being asked if the employer (1) knows that the employee has a disability, (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation. If the individual with a disability states that he does not need a reasonable accommodation, the employer will have fulfilled its obligation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (October 17, 2002) at Question 40, http://www.eeoc.gov/policy/docs/accommodation.html.
2 A variety of health professionals may provide documentation on psychiatric disabilities, including PTSD. Although an employer is entitled to know that the employee has a covered disability for which he needs a reasonable accommodation, it cannot ask for the employee’s complete medical records. Documentation generally will be sufficient if it: (1) describes the nature, severity, and duration of the employee's impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits the employee's ability to perform the activity or activities; and, (2) substantiates why the requested reasonable accommodation is needed. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA)(July 26, 2000) at Question 10, http://www.eeoc.gov/policy/docs/guidance-inquiries.html.
3 There are extensive public and private resources to help employers identify reasonable accommodations for employees with particular disabilities. For example, the website for the Job Accommodation Network (JAN) provides a practical guide for employers on “Accommodating Service Members and Veterans with PTSD.” See JAN’s website at http://www.jan.wvu.edu.
This page was last modified on May 6, 2008.
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