While fears may be exaggerated, that's not to say there are no risks to a business when it comes to the ADA's psychiatric component. Probably the biggest danger is that existing employees will file claims with the EEOC, charging on-the-job mistreatment or fired workers will file saying they were terminated because of a disability. And if the EEOC rules against you, penalties and subsequent judgments awarded in court can skyrocket into six or seven figures. Even a quick defense against meritless claims will cost you: "Defending against even a bogus claim under the ADA can easily cost a business $10,000 in legal fees, just to get through the EEOC investigation," says Kubik.
More troubling, adds Kubik, is that the number of ADA claims involving psychiatric issues is on the rise. Plainly put, the smart business ought to take steps now to strengthen its position.
"The first step is to never ignore potential psychiatric issues in your workplace. You cannot say `It's not my problem,' " says Stephen L. Sheinfeld, chairman of the Labor and Employment Law Department of law firm Whitman, Breed, Abbott & Morgan LLP in New York City and founding editor in chief of the monthly newsletter Employment Law Strategist. "Under the ADA, you are under no obligation to probe for impairments. However, when it is obvious there is an issue--or an employee tells you [there's one]--you have an obligation to engage in a dialogue with the employee to look for solutions."
What if you reach an impasse? Your best defense in all ADA cases that could wind up in court is having specific, comprehensive job descriptions on file. "Put in intangibles that you nonetheless deem essential--`the ability to work well with peers,' `the ability to keep a punctual schedule,' " says Sheinfeld. "The more detailed you get, the stronger your position if you must argue that the employee cannot perform the essential functions of the job. You also want to have written, detailed work rules and a code of conduct that spells out what's required and what conduct won't be tolerated.
Take precautions, he adds, "and the impact of the ADA on your business won't be large. Don't discriminate and do take proactive measures, and you will find the impacts are very small, if you see any at all."
Equal Employment Opportunity Commission, http://www.eeoc.gov
National Alliance for the Mentally Ill, http://www.nami.org
Stites & Harbison, (502) 587-3400, firstname.lastname@example.org
Whitman, Breed, Abbot & Morgan, (212) 351-3304