Employers today are routinely confronted with employee medical issues that impact the workplace. Despite the ever-increasing focus on issues under the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA) and their state and local counterparts, one employee medical issue that has received scant attention is mental illness.
The National Alliance on Mental Illness reports that 43.8 million people experience mental illness in a given year.
Approximately 10 million will experience a “serious mental illness” that substantially limits one or more major life activities. It costs the U.S. economy over $100 billion each year and can take a heavy toll on the person afflicted as well as on their family, friends and co-workers.
The Equal Employment Opportunity Commission (EEOC) takes the position that a mental health condition does not have to be significant or permanent to qualify as a “disability” under the ADA. If the condition is limiting, it likely qualifies.
Mental Health Conditions
While distinct mental health conditions number in the hundreds, among the most common mental health impairments or disabilities that employers may confront are the following: bipolar disorder; post-traumatic stress disorder; panic disorder; borderline personality disorder; obsessive compulsive disorder; schizophrenia; and major depression.
In California, which defines mental disabilities more broadly than the ADA, emotional illnesses and intellectual learning disabilities are included. This means that conditions like ADHD and dyslexia would qualify as mental disabilities.
Because such mental health impairments are almost always protected disabilities under the ADA and similar state laws, an employer must proceed cautiously in attempting to address these issues when they arise. Medical privacy rules similarly require discretion in addressing employee mental health conditions.
Inquiries to Employees
The EEOC has stringent standards regarding what and when an employer may ask an employee about information regarding an employee’s medical (mental) health:
1. After a job offer has been made and if all applicants in a job category are asked for the same medical information;
2. When an employee has requested a reasonable accommodation;
3. When the employer is engaging in affirmative action regarding persons with disabilities; and
4. When the employer has objective evidence that an employee is unable to perform their job or poses a safety risk because of their condition.
Employers sometimes become aware that an employee may be suffering from a mental impairment or disability that’s affecting the workplace through reports from fellow employees. A major change in personality, such as from happy to moody, confrontational or argumentative behavior and similar uncharacteristic conduct may be signs of a problem.
The possibility that a supervisor or manager may encounter an employee mental health condition in the workplace underscores the need for the issue to be addressed in their employment training. Basic information on the proper response to an employee mental condition should be a part of work training.
The appropriate response to a potential mental health issue is to carefully gather as much information as possible while maintaining appropriate confidentiality and medical privacy. A human resources representative or appropriate member of management, working in conjunction with the plant nurse or a medical practitioner, should confidentially interview witnesses to the abnormal conduct.
Employers can request disability information only if it is job-related and consistent with business necessity. Given the sensitive nature of the issues, these types of discussions should occur in private.
Permissible Action
If it’s determined that the employee’s medical (mental) condition is limiting the employee’s ability to properly perform his/her job or creating disruptions or safety issues in the workplace, the employer may require a fitness for duty examination. The examination must be “job related and consistent with business necessity.”
The employee’s personal physician or medical provider should be consulted for any input that may help in performing the assessment. If the exam does not totally disqualify the employee from employment, potential reasonable accommodations should be discussed with the employee in conjunction with the medical professionals involved.
There are some mental conditions that cause an employee to pose a threat of physical harm to fellow employees. If the employee is not capable of performing the essential functions of their job without posing a threat to the safety of themselves or others, even with reasonable accommodations, the employer may have no choice but to terminate the employee. Taking such action should be rare and only come after all possible reasonable accommodations have been considered and found unfeasible. Involvement of the medical professionals would be critical before reaching a termination decision.
The ultimate goal and concern should be the well-being of the employee. If medically supervised leave, even for an extended period, would enable the employee to improve and possibly return to work, it could be the best course of action.
