There are many legislative milestones for disability accommodations, particularly for

mental illnesses. However, this brief literature review will only focus on the Rehabilitation Act

of 1973 (the Rehab Act) and the various workplace accommodations as well as the economic

principles often used in arguments against such accommodations. Although the American with

Disabilities Act (A.D.A.) certainly has its place within workplace accommodations, the standards

for deciding issues of employment discrimination are the same under the Rehab Act.1 It would be

redundant to explore A.D.A., so the focus of this paper will be the Rehab Act.

I. ISSUES

Many with mental illnesses face deficits in key work traits often required for any job.

These deficits include:2

Interpersonal skills such as conversing with others and recognizing social cues

Concentration

The ability to learn job skills

Working independently

Maintaining work stamina

Managing symptoms and stress levels

The deficits that were most frequently cited for accommodations were cognitive and

interpersonal skills.3 Most of the issues stem from social stigma, which is a combination of:

1 "Rehabilitation Act of 1973," accessed June 6, 2016, https://www.disability.gov/rehabilitation-act-1973/

2 Kim L. MacDonald-Wilson, et al. "An Investigation of Reasonable Workplace Accommodations for People with

Psychiatric Disabilities: Quantitative Findings from a Multi-Site Study," Community Mental Health Journal 38, no.

1 (2002): 48. 3 Kim L. MacDonald-Wilson, et al. "An Investigation of Reasonable Workplace Accommodations for People with

Psychiatric Disabilities: Quantitative Findings from a Multi-Site Study," Community Mental Health Journal 38, no.

1 (2002): 48.

“lack of knowledge of the symptoms of mental illness.” 4

Studies show that the general

public’s “accurate knowledge” of mental illnesses is “rather low.”5

“prejudicial attitudes.”6 This often takes the form of negative thoughts and emotions such

as disgust, which “a majority group holds against a minority group.”7

“anticipated or real acts of discrimination against people who have mental-health

problems.”8 Discrimination is “any acts to the disadvantage of people who are

stigmatized.”9

The stigma that comes from others often leads to self-stigma, the “internalization of

stigmatizing attitudes,” and stigma from either others or self is the main reason for the

underutilization of healthcare services,10

presumably workplace accommodations as well.

Generally, this result in employees waiting for their symptoms to severely limit their daily

functioning as impetus to seek help as opposed to preemptively treating. This in turn becomes

total work loss such as absenteeism and turnover.11

II. CURRENT SOLUTIONS

A. Workplace Accommodations

Often, workplace accommodations take the form of flexible scheduling12

, telecommuting,

4 Hanisch, Sabine E., et al. "The Effectiveness of Interventions Targeting the Stigma of Mental Illness at the

Workplace: a Systematic Review," BMC Psychiatry 16:1 (2016): 1. 5 Ibid.

6 Ibid.

7 Ibid., 2.

8 Ibid, 1.

9 Ibid., 2.

10 Ibid., 2.

11 Ibid, 2.

12 Kim L. MacDonald-Wilson, et al. "An Investigation of Reasonable Workplace Accommodations for People with

Psychiatric Disabilities: Quantitative Findings from a Multi-Site Study," Community Mental Health Journal 38, no.

1 (2002): 36.

working from home,13

job modification, facilitating communication on the job, modifying

employee training, training to staff or supervisors, modifying supervision, making policy

changes, modifying physical environment or providing special equipment, changing work

procedures.14

Sick leave for mental illness and even unpaid leave for mental health treatment are

also recommended.15

Modifications entail mitigating or removing distractions in the workplace,

private spaces, noise reduction, increased natural lighting, and music to block out other

distractions.16

Job modifications also include the removal of non-essential tasks required for a particular

job, division of large assignments into smaller tasks and goals, allotting extra time and help for

an activity, and additional training or modified training materials. Management needs to

understand the importance of flexible and supportive supervision style; positive reinforcement

and feedback; adjustments in level of supervision or structure, such as frequent meetings to help

prioritize tasks; and open communication with supervisors regarding performance and work

expectations. Additional forms of communication as well as written and visual tools, creation

and implementation of written tools such as daily "to-do" lists, step-by-step checklists, written

instructions and typed minutes of meetings are another form of accommodations. Regularly

scheduled meetings with employees to discuss workplace issues and productivity, development

of preemptive strategies to deal with problems before they arise, written work agreements that

include any agreed upon accommodations, long-term and short-term goals, expectations of

13

Maximizing Productivity: Accommodations for Employees with Psychiatric Disabilities,” accessed June 6, 2016,

https://www.dol.gov/odep/pubs/fact/psychiatric.htm 14

Kim L. MacDonald-Wilson, et al. "An Investigation of Reasonable Workplace Accommodations for People with

Psychiatric Disabilities: Quantitative Findings from a Multi-Site Study," Community Mental Health Journal 38, no.

1 (2002): 36-7. 15

“Maximizing Productivity: Accommodations for Employees with Psychiatric Disabilities,” accessed June 6, 2016,

https://www.dol.gov/odep/pubs/fact/psychiatric.htm 16

“Maximizing Productivity: Accommodations for Employees with Psychiatric Disabilities,” accessed June 6, 2016,

https://www.dol.gov/odep/pubs/fact/psychiatric.htm

responsibilities and consequences of not meeting performance standards, and education and

training of all employees about their right to accommodations are useful in the workplace.17

B. The Rehabilitation Act of 1973 (the Rehab Act)

The Rehab Act “assists disabled persons affected by either physical or mental

impairments by providing for rehabilitative services and by offering protection from certain

forms of discrimination.”18

The Rehab Act includes “limited protection from employment

discrimination.”19

One of the most important subchapters of the Rehab Act is V, which states:

1. A plaintiff (employee) must establish the defendant is covered by the Rehab Act.20

This

is someone who has one or more physical or mental disabilities “resulting from”

amputation, arthritis, autism, blindness, burn injury cancer, cerebral palsy, cystic fibrosis,

deafness, head injury, heart disease, hemiplegia, hemophilia, respiratory/pulmonary

dysfunction, mental retardation, mental illness, multiple sclerosis, muscular dystrophy,

musculoskeletal disorders, neurological disorders including strokes and epilepsy,

paraplegia, quadriplegia, other spinal conditions, sickle cell anemia and specific learning

disability or combination of learning disabilities determined on the basis of an evaluation

of rehabilitation potential to cause comparable substantial functional limitation.21

2. The complainant suffers from an impairment that “results in a substantial limitation” that

“affects a major life activity.22

Such activities include:

a. Mobility

17

Maximizing Productivity: Accommodations for Employees with Psychiatric Disabilities,” accessed June 6, 2016,

https://www.dol.gov/odep/pubs/fact/psychiatric.htm 18

Larson, 841. 19

Ibid, 841. 20

Ibid, 841. 21

Ibid., 843. Larson quotes the exact text of the statute. 22

Ibid., 841.

b. Communication

c. self-care

d. self-direction

e. interpersonal skills

f. work tolerance

g. work skills.23

The Act further defines “physical or mental impairment” as “any psychological disorder

or condition, cosmetic disfigurement, or anatomical loss” more notably in relation to “any mental

or psychological disorder” to include but not limit to:24

speech

mental retardation

emotional illness

drug addiction

alcoholism

The key sections of the Rehab Act are:

The Rehab Act prohibits discrimination on the basis of disability in programs run by

federal agencies, programs receiving federal funding, federal employment, and employment of

federal contractors.25

Section 501 of the Rehab Act: prohibits discrimination against qualified individuals with

disabilities and ensures affirmative action practices and equal employment opportunity to

23

Larson, 843. Larson exactly quotes the statute. 24

Ibid., 844. 25

"Rehabilitation Act of 1973," accessed June 6, 2016, https://www.disability.gov/rehabilitation-act-1973/

those with disabilities.26

Section 503: prohibits discrimination based on disability and requires affirmative action

in hiring, placement, and advancement of people with disabilities. Additionally, a

“utilization goal” for people with disabilities is set as “7% of employees in each job

category or 7% of the total workforce of a business contracted with the Federal

Government” to help increase the employment of people with disabilities by companies

that do business with the Federal Government.27

Section 504 of the Rehab Act: requires reasonable accommodation for employees with

disabilities; program accessibility; effective communication with people who have

hearing or vision disabilities; and accessible new construction and alterations. Each

federal agency has its own set of Section 504 regulations that apply to its programs. For

example: the U.S. Department of Health and Human Services must make sure

that medical offices/clinics and medical equipment are accessible to people with

disabilities.28

Section 508 of the Rehab Act: electronic and information technology must be accessible

to those with disabilities. “An accessible information technology system is one that can

be operated in a variety of ways and does not rely on a single sense or ability of the user.”

This includes “accessibility-related software or peripheral devices in order to use systems

that comply with Section 508.”29

Case law has concluded that impairment is “any condition which weakens, diminishes,

26

"Rehabilitation Act of 1973," accessed June 6, 2016, https://www.disability.gov/rehabilitation-act-1973/ 27

Ibid. 28

Ibid. 29

Ibid.

restricts, or otherwise damages an individual’s health or physical or mental activity.”30

Additionally, courts have also concluded that the Department of Health and Human Services has

the authority to consider “a broad interpretation inherent in the statutory definition and that the

term should not be limited to ‘so-called “traditional handicaps.”’”31

Most instances of Subchapter V end with the defendant (employer) acknowledging

reliance upon the plaintiff’s disability.32

The outcome in all cases will depend upon whether or

not the plaintiff is qualified for the job and whether or not the defendant can reasonable

accommodate the plaintiff.33

Employers who receive federal financial assistance are subject to the Rehab Act

provisions.34

Executive Order 12250 gives executive agencies the power to issue guidelines for

those aforementioned employers.35

III. ECONOMICS: A COST-BENEFIT ANALYSIS

In many ways, the economic arguments against mental health parity laws can be seen in

arguments against workplace accommodations. Just like insurance companies under-providing

mental health coverage, employers evoke adverse-selection—which is the “rational calculations”

determined to “underprovide” accommodations for certain health conditions.36

There are three

main justifications against providing accommodations, though this is not an exhaustive list:

Subjective nature of mental illness compared to physical illnesses,37

often resting on the

30

Larson, 845. 31

Ibid., 845. Larson cites E.E. Black, Ltd v. Marshall (1980) and School Board of Nassau County, Florida v. Arline

(1987). 32

Ibid., 841. 33

Ibid., 842. 34

Ibid., 843. 35

Ibid., 843-4. 36

Barry, et. al., 623. 37

Ibid., 770. This “subjectivity” refers to diagnosis and treatment options and is addressed with fuller detail in the

assumption that “mental illness has more diagnostic ambiguity and uncertain treatment

success than that for physical diseases”;38

therefore, “almost any kind of behavior” can be

classified “within the compass of psychiatry.”39

"Moral Hazard": the tendency to demand additional accommodations as they become

more accessible.40

Cost-Benefit: expanding accommodations might help but does not ensure its use.41

There were indirect costs to providing accommodations, though they were not in terms of

monetary dollar signs. These included expending time for additional training, placing an extra

burden on other workers to accommodate flexible schedules, and reduced productivity in 15%

accommodated employees in a 2002 multi-site longitudinal study.42

This study, however, was

largely focused on the retail sector43

and mostly in the northeast states.44

Not accommodating becomes total work loss such as absenteeism and turnover.45

In a

study of U.K. employers, such work losses cost employers twenty-six billion pounds per year in

losses.46

However, not every study on the effectiveness of anti-stigma prevention programs in

relation to workplace accommodations is perfect and therefore not every recommendation based

Psychology chapter of this paper. 38

Gold, Maggie D. “Must Insurers Treat All Illnesses Equally? -- Mental vs. Physical Illness: Congressional and

Administrative Failure to End Limitations to and Exclusions from Coverage for Mental Illness in Employer

Provided Health Benefits under the Mental Health Parity Act and the Americans with Disabilities Act.” Connecticut

Insurance Law Journal 4 (1997): 776. 39

Eysenck, H.J., et al. “Diagnosis and Clinical Assessment: the DSM-III” Annual Review of Psychology 34 (1983):

167-193. 40

Rodeback, David E., “The Effects of Parity and Cost-Sharing in Mental Health Benefits on the Utilization of

Mental Health and Medical Services: the Parity Experience of One Health Care Organization,” UMI Dissertations

Publishing (2006): 12; Barry, Colleen L., et al. “The Costs of Mental Health Parity: Still an Impediment?” Health

Affairs 25 (2006): 624. 41

Barry, Colleen L., et al. “The Costs of Mental Health Parity: Still an Impediment?” Health Affairs 25 (2006):

633. 42

MacDonald-Wilson, et al, 44-5. 43

Ibid., 46. 44

Ibid., 49. 45

Hanisch, 2. 46

Ibid., 2.

on those studies is perfect.47

Quite a few studies do not follow-up beyond post-intervention

studies48

to obtain a “before and after” analysis of accommodations.49

Nonetheless, studies of anti-stigma programs show that:

Narrowly tailored anti-stigma programs are more effective than public awareness

campaigns.50

Participation in anti-stigma programs can be made mandatory.51

Unlike public awareness, workplace anti-stigma programs can be “more intensive” in its

length of duration and its information.52

CONCLUSION:

More training for employment personnel,53

Mental health first aid (M.H.F.A.), and crisis

intervention training (C.I.T.)54

are three prevalent options to help institute workplace

accommodations. In some cases, job coaches for those with mental illnesses were necessary as

well.55

In a study of the United Kingdom, the researchers analyzed whether or not job coaches

helped maintain employment by focusing on 744 individuals who found employment. 43.7% of

these particular individuals reported having a job coach.56

The study concludes that those

supported by job coaches were more likely to maintain employment.57

Inevitably,

accommodations do not guarantee longevity as one study demonstrated that 75% were still

47

Hanisch, 7-11. 48

Ibid., 7. 49

Ibid., 7. 50

Ibid., 7 51

Ibid., 7 52

Ibid., 7 53

MacDonald-Wilson, et al., 49. 54

Hanisch, 4-5. 55

MacDonald-Wilson, et al, 45. 56

Hoven, Hanno, Rebecca Ford, Anne Willmot, Stephanie Hagan, and Johannes Siegrist. "Job coaching and success

in gaining and sustaining employment among homeless people." Research on Social Work Practice(2014): 4-5. 57

Ibid., 5.

employed three months after the start and only 47% by twelve months.58

More research on accommodations must be conducted, however. The methodology and

the follow-up on some of these studies, as well as its lack of geographic diversity, create some

skepticism as to the validity of these claims that advocate for accommodations.

58

MacDonald-Wilson, Kim L., et al., 42.

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