From anxiety to depression, PTSD to bi-polar disorder, mental health illnesses are not an uncommon problem for workers or for employers. One in four Americans experience some type of mental illness each year, and it is a leading cause of workplace absenteeism and reduced productivity. Yet most employers have little experience in how to deal with mental illness in an effective and legal way.
People with mental and psychological disorders are entitled to protection from discrimination under the American with Disabilities Act (“ADA,” or “ADAAA” as amended in 2009), which applies to employers with 15 or more employees. Mental disabilities are also protected under most state disability protection laws, which usually apply to smaller employers as well. Under these laws, most psychological disorders are still considered to be disabilities even if the individual is stabilized with medication and treatment.
This legal protection means that employers must offer reasonable accommodations to workers with mental illnesses, just as you would with physical disabilities. Whether or not accommodations are necessary, employers must also ensure the individual is protected from unfair discrimination based on the disability or a perception of having the disability.
Dealing with Mental Health in a Compliant Way
When handling any issue related to mental health, employers should stick to a standard process, and resist the urge to respond emotionally. This will usually mean getting the employee’s health care practitioner involved, and avoiding making your own diagnosis or giving advice.
If an employee notifies you of an illness, or requests an accommodation to do their job, respond in a reasonable and prompt manner. In most cases, you would then let the employee know that you want to work with them towards a reasonable solution that helps them find a way to perform their job.
You will likely need the employee to fill out a Fitness for Duty form, which allows their healthcare provider to indicate if the person is capable of working, and any restrictions that may be needed. It’s then up to you to have an interactive discussion (which should be documented) of any possible accommodations that won’t place an undue burden on the practice.
Here are some examples of workplace mental health issues:
- A worker with an anxiety disorder asks not to receive any criticism on the job—but the employer needs to be able to provide honest feedback, including negative feedback, if warranted.
- An employee suffering from bipolar disorder reports feeling “unstable” and having suicidal thoughts.
- A worker with obsessive-compulsive disorder commonly repeats behaviors, but their quality of work is not affected.
Let’s look at some likely responses to each of these issues.
Navigating An Appropriate Employer Response
In Example 1 above, it is unreasonable to expect an employer not to provide any negative feedback. However, a reasonable accommodation might be that the employee be notified a few days in advance of any feedback on her work, so she has time to prepare, and that feedback be provided in writing so she has time to receive it in a place she feels safe.
In Example 2, we have a potentially suicidal person who clearly needs assessment and possibly assistance from a qualified medical provider. Of course, if there are also threats of violence, or if an employee reveals plans to do harm to themselves or another, immediate action must first be taken to make the workplace and the individual safe. Contact local emergency services, such as 911 or a suicide hotline (National Suicide Prevention Lifeline: 1-800-273-8255) as soon as possible. If your knowledge of the threat comes from a third party, you may have to investigate the circumstances first before taking any action. The key here is to recognize the warning signs and encourage at-risk employees to seek help.
Do not take premature disciplinary measures with an unstable employee whose condition is affecting their work. Whether the appropriate response is accommodation, suspension, or termination, it must be made carefully. It is important to realize that termination doesn’t always end the risk of violence—in fact, it can make the situation worse. Taking a calm and compassionate approach is warranted. Impulsive action can inflame the situation, or even give rise to a discrimination complaint.
Realize that while you can fire someone for disability-related conduct if it violates a company policy or falls below your performance standards, you cannot terminate someone for the disability itself. Furthermore, if your reason for termination is just a pretext—a made-up reason to justify getting the person out, because their condition makes you or others uncomfortable—then you are asking for a lawsuit. Instead, focus on performance and back up all your statements with facts. If the employee raises their condition as an excuse, ask them how you can help. This gets the interactive accommodation discussion started. Ultimately, if the person is unable to work, or to work on a reliable basis, a leave of absence may be the best accommodation you can offer.
Finally, as in Example 3, sometimes a person has a mental health condition but is performing their job without any need for accommodation. In this type of situation, the employee may behave differently or oddly without the quality of their work being affected. This may not require any response from the employer at all. You may just check in with the person and ask if they are okay from time to time. If they say they’re doing fine, you’re off the hook. Simply document the facts of your conversation, and pay attention to how other employees respond to them. It is important to ensure that they do not suffer discrimination as a result of the stigma of having a particular condition. (This may be a good opportunity to train the rest of your team on tolerance and diversity.)
Mental health in the workplace can be a delicate topic, and your actions as an employer need to be prompt and appropriate without being premature, discriminatory or inflammatory. As always, with tricky situations such as these, your CEDR Solution Center Advisors are here to help. Call us at 866-414-6056 about any issues that arise.