By Gary S. Peeples
Although mental health conditions may not be as outwardly visible as some physical disabilities, both mental and physical disabilities are protected by the Americans with Disabilities Act (ADA). This article offers advice to employers on how to deal with certain workplace issues relating to employees’ mental health conditions.
First, it is worth emphasizing that employees with disabilities—including employees with mental health conditions—are not exempt from complying with legitimate conduct and job-related rules. Even the Equal Employment Opportunity Commission has admitted this, acknowledging that an “employer does not have to excuse poor job performance, even if it was caused by a medical condition or the side effects of medication.” Even if an employee discloses a mental health condition in response to being disciplined, an employer is not required to rescind that discipline after learning of the employee’s mental impairment.
Next, and related, employers should resist the urge to play physician or psychiatrist, even if that urge is well-intentioned. If any employee is having performance issues or behavioral issues, an employer’s first instinct is often to help the employee by trying to figure out if there is a medical cause for the poor performance or unusual behavior, especially if it seems out of character. For example, an employee who has become slow at performing tasks, is unresponsive to requests for assistance and generally difficult to communicate with may be suffering from depression but she may also just be doing a bad job. By speculating that she might be depressed and urging her to seek a medical evaluation instead of counseling her about her work performance, the employer may be “perceiving” the employee as disabled in violation of the ADA. Or it may force the employee to disclose a medical condition that she has a right to keep private, which is also a violation of the ADA.
Finally, some discussion of the interactive process is warranted. Employers cannot make a decision about whether an employee’s mental illness prevents him from doing his job without talking to him, his physician, and possibly seeking expert guidance. The mere failure to engage in the interactive process can amount to a violation of the ADA even if it later turns out there was no reasonable accommodation available. The purpose of a reasonable accommodation is to permit an employee to perform the essential functions of his job. When it comes to mental health conditions, some potential accommodations include modifying work schedules, moving an employee to a quiet work environment, and (in some instances) offering unpaid leave. But the question of whether a proposed accommodation is feasible and reasonable is often fact-dependent, so employers must be able to show that their decision not to accommodate was based on, at the very least, exploring options with the employee in good faith instead of making decisions in a vacuum.