Responding to Employees and Students with Mental Health Needs SAI - - PowerPoint PPT Presentation

Responding to Employees and Students with Mental Health Needs

SAI Law Conference February 7, 2017

Danielle Haindfield dhaindfield@ahlerslaw.com Miriam Van Heukelem mvanheukelem@ahlerslaw.com

Part 1: Applicable Laws

The Americans with Disabilities Act (“ADA”): prohibits discrimination against qualified individuals on the basis of physical or mental disability. Requires reasonable accommodations.

Section 504 of the Rehabilitation Act: prohibits discrimination on the basis of disability in federally funded programs. Also requires accommodations to ensure equal access.

The Individuals with Disabilities Education Act (“IDEA”): provides substantive and procedural rights to students with disabilities who require special education because of disability.

The Iowa Civil Rights Act (“ICRA”): prohibits discrimination against a qualified person with a disability because of the person’s disability.

Part 2: Employees

General rule: No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

Source: The Americans with Disabilities Act, 42 U.S.C. § 12112(a).

• Definitions: “Qualified Individual”

– The individual with a disability must be able to perform the essential functions of their position. – “Essential functions” are the fundamental job duties of the employment position the individual with a disability holds or desire, with or without a reasonable accommodation.

– Main source: Job Descriptions

Key Issue: Can employee still perform the essential functions with or without accommodations?

• Definitions: “Disability”

– A physical or mental impairment that substantially limits one or more major life activities of such individual; – a record of such an impairment; or – being regarded as having such an impairment.

– Definitions: “Mental impairment”

• “Any mental or psychological disorder, such

as … emotional or mental illness[.]”

Examples include but are not limited to PTSD, Major/Chronic Depressive Disorder, Anxiety/Depressive Disorders, Bipolar Disorder, Obsessive Compulsive Disorder, Schizophrenia, other disorders or conditions affecting personality and mental capacity

Possible signs of mental impairment:

– Working slowly or missing deadlines – Erratic, uncharacteristic, or unexplained behavior – Increasing absenteeism and calling in sick – Irritability and anger with co-workers and supervisor – Difficulty concentrating

More possible signs of mental impairment:

– Appearing numb or emotionless – Withdrawing from work activity – Overworking – Forgetting directives, procedures and requests – Having difficulty with work transitions, changes in routines, or making decisions

Employers and co-workers should avoid trying to diagnose an employee’s condition or mental impairment. Such diagnoses should be left to appropriate health care professionals.

Example 1: Sam, an employee who has an anxiety disorder, says that his mind wanders frequently and that he is often distracted by irrelevant thoughts. As a result, he makes repeated errors at work

• n detailed or complex tasks, even after being reprimanded. His

doctor says that the errors are caused by his anxiety disorder and may last indefinitely. Does Sam have a “disability”?

Source: EEOC Enforcement Guidance

Example 2: Steve states that he has trouble concentrating when he is tired or during long meetings. He attributes this to his chronic

• depression. Although his ability to concentrate may be slightly

limited due to depression (a mental impairment), it is not significantly restricted as compared to the average person in the general population. Does Steve have a “disability”?

Source: EEOC Enforcement Guidance

• Definition: “Substantially limits”

– Need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting – Fact-specific inquiry – Episodic: An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active

• Definition: “Substantially limits”

– Mitigating Measures/Medications:

• Federal law: Whether an impairment substantially limits a major life

activity is made without regard mitigating measures such as medication, medical supplies, equipment, etc.

• Iowa law: Cannot consider MMs in determining the existence of an

impairment, but may be considered in determining whether the impairment substantially limits a major life activity.

• Definitions: “Major Life Activity”

– Includes:

• Bodily Functions such as immune system, digestive,

neurological, etc.

• Life Tasks such as caring for oneself, seeing, hearing,

eating, walking, etc. – Note: This definition also includes activities commonly affected by mental impairments such as sleeping, concentrating, and thinking

Example 3: Judy has had major depression for almost a

• year. She has been intensely sad and socially withdrawn

(except for going to work), has developed serious insomnia, and has had severe problems concentrating. Does Judy have a Qualifying Disability?

Source: EEOC Enforcement Guidance

Example 4: Jane took medication for bipolar disorder for a few

• months. Before starting medication, she experienced increasingly

severe and frequent cycles of depression and mania; at times, she became extremely withdrawn socially or had difficulty caring for

• himself. Her symptoms have abated with medication, but her

doctor says that the duration and course of her bipolar disorder is indefinite. Does Jane have a Qualifying Disability?

Source: EEOC Enforcement Guidance

Example 5: Travis was distressed by the end of a romantic

• relationship. Although he continued his daily routine, he sometimes

became agitated at work. He was most distressed for about a month during and immediately after the breakup. He sought counseling and his mood improved within weeks. His counselor gave him a diagnosis of "adjustment disorder" and stated that he was not expected to experience any long-term problems associated with this event. Does Travis have a Qualifying Disability? Source: EEOC Enforcement Guidance

• Definition: Having a “record” of an impairment

– Documented history of a qualifying impairment

• Definition: “Regarded As” having an impairment

– An individual establishes he or she has been subjected to an discriminatory action because of an actual or perceived physical or mental impairment whether or not the impairment actually limits or is perceived to limit a major life activity.

A qualified individual with a disability must be provided a

REASONABLE ACCOMMODATION

unless

Doing so would impose an UNDUE BURDEN

• n the employer.

Employee’s Obligations:

– Generally must inform the employer of need for accommodation – Does not need to use “magic words” of “reasonable accommodation”

Co-Worker’s Obligations:

– May/should report behaviors or performance issues affecting workplace environment or creating concern

• f direct threat

– Should not harass or subject employee to discriminatory treatment

Employer’s Obligations:

• Generally, should not act until employee informs of

need for reasonable accommodation

• Exceptions creating duty to initiate “interactive

process”:

• Becomes aware of disability and need is
• bservable and/or obvious
• Direct risk to health and safety

“The employer has to meet the employee half-way, and if it appears that the employee may need an accommodation but doesn’t know how to ask for it, the employer should do what it can to help.” Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281 (7th

• Cir. 1996)

Employer’s Obligations:

• Confidentiality:

– Do NOT tell other employees that a coworker has a disability or is receiving a reasonable accommodation – EEOC guidance: In response to coworker questions, explain only that the employer is acting for “legitimate business reasons” or “in compliance with federal law”

Reasonable Accommodations:

– Any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.

– Accommodations should be:

• Reasonable – not an undue burden on the employer, and
• Effective – enables the employee to perform the essential

functions of the job.

Examples of Possible Accommodations:

• Job restructuring
• Part-time or modified work schedules
• Acquiring or modifying equipment
• Changing tests, training materials, or policies
• Providing qualified readers or interpreters
• Reassignment to a vacant position
• Leave

Examples of unreasonable accommodations:

– Eliminate a job’s essential function – Lower production/performance standards – Provide personal use items or assistive devices; e.g. hearing aids, wheelchair – Create new position or train employee for new position (when training is not ordinarily provided to other employees)

Additional considerations

– Do not have to provide the employee’s preferred accommodation; – If more than one accommodation is reasonable, the employer may choose which to provide; – Need not violate seniority system or collective bargaining Hours/Leave – Modifying hours significantly disrupts operation or requires replacement employee

• Indefinite leave not a reasonable accommodation

Undue Burden Factors:

– Size with respect to number of employees, number and type

• f facilities, and size of budget;

– Type of the employer’s operation, including the composition and structure of the employer’s workforce; and – The nature and cost of the accommodation needed.

Example 6: A school district rotates its cleaning staff on a

monthly basis. One crew member has a psychiatric disability, which make it difficult to adjust to alterations in his daily

• routine. He asks for a reasonable accommodation and proposes

three options: staying on one floor permanently, staying on one floor for two months and then rotating, or allowing a transition period to adjust to a change in floor assignments. Is this a reasonable accommodation?

Answer: Yes. These accommodations are reasonable because they appear to be feasible solutions to this employee's problems dealing with changes to his routine. They also appear to be effective because they would enable him to perform his cleaning duties.

Source: EEOC Enforcement Guidance (altered)

Special Issues: Medical Exams and Questions

Application and Interview Stage

DON’T: » Ask a job applicant to answer medical questions or take a medical exam; » Ask job applicants if they have a disability (or about the nature of an obvious disability);

Application and Interview Stage:

DO: » Ask job applicants whether they can perform the essential functions of the job, with or without reasonable accommodations.

*Note that asking an applicant to perform a drug test is not a “medical exam” or “medical inquiry” prohibited by the ADA.

After Conditional Job Offer

DO: Condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam, but

• nly if:

» Required of all new employees in the same type of job; and » Reject only based on results that are job-related and consistent with business necessity (or where a direct threat exists).

During Employment

» If the employer needs medical documentation to support an employee’s request for an accommodation;

• r

» If the employer believes that an employee is not able to perform a job (essential functions) successfully or safely.

During Employment

If the employee’s physician does not provide sufficient information, an employer can require the employee to go to a physician of the employer’s choice and at the employer’s expense.

During employment

Under the ADA, exam conducted by the employer’s health professional must be “job-related” and “consistent with business necessity.” » “Job-related”: Measure one’s ability to perform the job; » “Business Necessity” Relate to the essential functions

• f the job.

Example 7: A cafeteria worker does not learn the tasks she is required to perform to timely prepare food each day. She often forgets steps or does not have things ready by mealtime. She is not adequately performing her essential function of timely preparing food. There is no indication, however, that her failure to learn the steps is related in any way to a medical condition. Could the employer request a medical examination or ask about a disability?

Source: EEOC Enforcement Guidance (altered)

Special Issues: Employee misconduct and discipline

Federal Law:

Generally, an employer does not have to excuse misconduct violating a uniform rule (such as violence, threats, stealing, destruction of property) due to a disability, However, case law indicates that an employer may still need to consider whether misconduct could be remedied through a reasonable accommodation

Iowa law: not entirely clear

Even in cases of misconduct, the employer should still ask whether the employee could still perform the essential functions of their job with an accommodation? – Yes: the employer should work to provide the accommodation. – No: the employer is likely justified in disciplining/ terminating the employee.

Example 8: Mary, a receptionist who has major depression is late for work because medication side-effects make her extremely groggy. Her job responsibilities include answering the phones for the high school. She routinely arrives up to an hour after her start time…

…The District disciplines Mary for tardiness, stating her continued failure to arrive promptly will result in

• termination. Mary explains that she is often late because
• f a disability and needs to work on a later schedule.

What should the District do?

Source: EEOC Enforcement Guidance

Special Issues: Direct Threats

• Under the ADA, employers can “deny

employment benefits” to “individual[s who] pose a direct threat to the health or safety of

• ther individuals in the workplace.”

Definition: “Direct threat”

The employee poses a significant risk of substantial

harm to the health or safety of the individual or

• thers that cannot be eliminated or reduced by

reasonable accommodation;

Direct threat: Factors to consider

– The duration of the risk; – The nature and severity of the potential harm; – The likelihood that the potential harm will

• ccur; and

– The imminence of the potential harm.

How do you decide?

Assessment based on a “reasonable medical judgment”

that relies on (1) the most current medical knowledge and/or (2) best available objective evidence.

Request medical information or a medical exam

Again: Consider whether the employee can still perform the essential functions of their job with an accommodation?

Example 9: A school district knows that Tim, one of its best bus drivers, has bipolar disorder and had a manic episode last year when he was transporting a team around- the-clock for a long and stressful tournament. Tim’s behavior posed a direct threat (he drove the bus in a reckless manner).

After a short leave of absence, Tim returned to work and his usual high level of performance. The school district wants to assign him to out-of-town sports events. There is no indication that Tim’s condition has changed in the last year, or that his manic episode was not caused by the assignment at the tournament. Can the employer request a medical exam?

Yes: The District may request a fitness-for-duty examination because it has a reasonable belief, based on Tim’s past conduct, that his ability to perform essential job functions may continue to be impaired by a medical condition. The examination must be limited to the effect of his mental health condition on his ability, with or without reasonable accommodation, to perform essential job functions (not entire psychiatric history). Source: EEOC Enforcement Guidance (altered)

Part 3: Students

Main Issues:

• Identification of students
• How to serve: gen. ed., 504, IDEA, contracts

with outside services

• Anti-bullying/harassment
• Duty to warn/safety plans/crisis intervention

According to NAMI, one in five teens suffer from a mental health condition

According to the CDC, suicide is the third leading cause of death among children ages 12-19.

According to the Mayo Clinic, children can develop all of the same mental health conditions as adults, but sometimes express them differently. Common mental health conditions in children include anxiety disorder, ADHD, autism spectrum disorder, eating disorders, mood disorders, and schizophrenia.

• Significant mood changes
• Intense feelings
• Behavior changes
• Difficulty concentrating
• Unexplained weight loss
• Physical symptoms
• Physical harm/self-injury
• Substance abuse

Common Warning Signs

Identification – sources:

• Teacher report
• Student report (self or on behalf of friend)
• Parent report
• Guidance counselor

What next?

• Make reasonable efforts to protect student privacy –

comply with FERPA.

• Referral to guidance counselor?
• Referral to child study team?
• Referral for IDEA or 504 evaluation?

IDEA:

• Child find obligations are continuous and
• ngoing.
• If suspected mental health issues may be

interfering with a child’s ability to receive educational services, evaluate.

• IDEA-compliant evaluation also satisfies Section

504 obligation to evaluate.

IDEA Do’s and Don’t’s

DO: convene a Disability Suspect team as soon as information is received that a student’s mental health issues may be interfering with education if special education may be required to meet the student’s needs.

DON’T: Tell the parent they have to secure a diagnosis or outside evaluation before special education/504 accommodations will be considered.

DO: Make sure evaluations consider multiple sources of information in the relevant domains.

DON’T: Base an eligibility decision solely on one factor (e.g., grades or standardized test scores alone).

DO: Consider all instruction and related services that may be required for an eligible student to receive a FAPE.

DON’T: Tell a parent “we don’t provide counseling” or “you should take him to a therapist.”

DO: Consider whether persistent unexplained absenteeism may trigger the need to evaluate for IDEA/504 services.

DON’T: Attempt to diagnose a student if you are not licensed, trained, and employed to do so.

DO: Coordinate with or invite parents to provide input from private therapists/counselors.

DON’T: Just assume it is just “normal teen drama.”

2014 Dear Colleague Letter: Harassment of Disabled Students

• Must determine whether bullying is based
• n student’s disability.
• Must determine whether bullying created a

hostile environment for the student.

2014 DCL:

• OCR will ask:

– Did the school know or should it have known? – Did the school fail to take prompt and effective steps reasonably calculated to end the conduct, eliminate the hostile environment, prevent it from recurring, and as appropriate, remedy its effects?

Duty to Warn

• Some courts have concluded that school

counselors have a duty to use reasonable means to attempt to prevent suicide when they are on notice of a student’s suicidal intent.

See, e.g., Eisel v. Bd. Of Ed., 376 A.2d 447 (Md. 1991).

Potential liability (federal):

• IDEA: educational remedies for denial of FAPE or
• ther violations
• 504/ADA: Generally requires deliberate indifference,

bad faith, or gross misjudgment

• Section 1983: Remedies for violation of constitutional

rights; very high bar for Pl.

Potential liability (state):

• ICRA: discrimination/harassment – similar legal

standard likely to be applied from 504/ADA cases.

• Tort claims (e.g., negligent supervision): immunity

from liability may apply to employees acting in the scope of their authority.

• No private right of action under Iowa Code 280.28 –

anti-bullying law.

Questions?