How should we handle an employee whose performance is deteriorating and whom we suspect may have a mental disability?
In some cases, employees with mental disabilities disclose their conditions and request accommodations to allow them to continue working. Particularly when suffering from mental disabilities, however, individuals may be reluctant to reveal their condition.
An employer may inquire about an employee’s potential mental disability if the inquiry is job-related and consistent with business necessity. According to the EEOC, this means an employer may inquire about possible mental disabilities when the employer has a reasonable belief, based on objective evidence, that an employee’s inability to perform essential job functions is impaired by a medical condition. The EEOC takes the position that an employer must first have some objective evidence that the employee’s deteriorating performance is related to a mental condition -- such as knowledge that the employee suffered from a mental impairment under similar conditions in the past – before making such an inquiry.1
Practically speaking, employers should discuss performance deficiencies with employees under existing performance policies, regardless of the potential cause of the deteriorating performance. Thus, a supervisor can inquire about an employee’s repeatedly forgetting assigned tasks, having difficulty interacting with co-workers, or being late for work. The supervisor cannot, however, ask whether a mental condition has caused these problems, unless the supervisor has some objective evidence to support this supposition.
If we refer someone to our Employee Assistance Program (EAP), have we now “perceived” the individual as disabled?
Not necessarily. Courts in a number of jurisdictions have held that referral to an EAP does not establish conclusively that an employer regarded the referred employee as disabled. In most instances, the employer referred an employee to determine if the employee would constitute a direct threat to himself or others, or to determine whether the employee was fit to return to duty.2 The safest course is to permit a satisfactorily performing employee to continue working while he or she participates in a program offered through the EAP.
What should we tell other employees about an accommodation made for a mentally disabled employee?
Keep information on an employee’s medical condition – including any mental disability – private. Maintain such information separate from general personnel files as a confidential medical record. The EEOC recognizes that an employer may disclose an employee’s mental disability to an employee’s supervisor or manager, if necessary to provide a reasonable accommodation. But do not inform co-workers and other employees about an employee’s mental condition or need for a reasonable accommodation. The employer should instead explain that it protects employee privacy and complies with all federal and state laws. Employers can perhaps forestall such questions by including information on the requirements of the ADA in their EEO and anti-harassment training.
Do I have to transfer an employee, even if I don’t have a position available?
No. But, employers must generally consider reassignment to a vacant position when no accommodation is reasonable to enable an employee to perform his or her current job. The new position must be one for which the individual is qualified.
What kinds of accommodations are reasonable?
Employers should assess an employee’s request for an accommodation on a case-by-case basis, evaluating the preferred accommodation and, if warranted, suggesting alternatives. This exchange is the “interactive process” envisioned by the EEOC and expected in any accommodations case. For those with mental disabilities, the employer can consider modified work schedules, time off (both paid and unpaid), room dividers or partitions, minimizing distractions, offering instructions in a variety of formats, modifying workplace policies and the like. Let’s take a look at the two hypotheticals at the beginning of this article:
- Modification to Work Schedule
- Modifications to work schedules, such as permitting an employee to start work later, are often reasonable accommodations to counter the effects of medication taken by employees with mental disabilities. Keep in mind that each situation should be decided on a case-by-case basis: one employer lost the argument that an 8:00 a.m. start time was an essential function of a bank Marketing Manager’s job, when the bank could not articulate a reason for the start time apart from “setting a good example.”
- The bank nonetheless prevailed in the case because the Marketing Manager failed – despite multiple opportunities – to explain the reason for her repeated tardiness. The court held the employee responsible for the “breakdown in the interactive process.”
- Job Coach
- A job coach assists in training an individual with mental disabilities to perform the essential functions of the job. The EEOC takes the position that an employer can be required to provide a temporary job coach as a reasonable accommodation. Some courts have held, however, that an employer is not required to provide a permanent job coach, or to employ an individual whose job functions are actually performed by the job coach.
Do we have to tolerate misconduct?
No. Most courts – and even the EEOC -- agree that an employer may discipline an employee with a mental disability consistent with an existing conduct rules. Mentally disabled employees can generally be held to the job-related standards that are consistent with business necessity and applicable to all employees, both disabled and non-disabled.5
When an employee volunteers that he or she is mentally disabled, or when a permissible inquiry reveals that an employee suffers from a mental disability, employers should proceed with caution, but not fear. In many cases, individuals with mental disabilities can remain a highly effective member of your workforce with minimally invasive accommodations to account for the effects of medication, the need for more explicit instruction, or the lessening of distractions. This preceding article provides just a brief overview of some of the issues to explore in any such case. Competent legal counsel can guide you through the myriad of issues in your particular situation.