How to Manage an Employee With Mental Disabilities Under the ADA
Author: Margaret (Molly) DiBianca, Young Conaway Stargatt & Taylor, LLP
According to the National Institute of Mental Health, more than one in four adults has a diagnosable mental-health disorder, and one in 17 has a serious disorder such as schizophrenia. Even though many employees have a co-worker and/or supervisor with a mental disability, they may not be aware of the condition.
The Americans with Disabilities Act (ADA) requires that employers provide reasonable accommodations for employees with known mental or physical disabilities. Unlike many physical impairments, mental impairments are not identifiable immediately. Not only are mental impairments often difficult to spot, they also can be hard to handle from an HR perspective. As a result, many employers avoid addressing mental disabilities.
An employer need not shy away from mental disabilities, though, and should deal with them in essentially the same way as it would with a physical disability. All of the ADA obligations apply to mental disabilities, including the duty to engage the employee in an interactive discussion when an accommodation is requested. The following steps provide employers with guidance on handling mental disabilities in the workplace.
Step 1: Address Job Performance
A primary function of any supervisor's job is managing employee performance. Performance management, when done well, can help prevent discrimination claims, in addition to advancing an employer's business objectives.
When addressing job performance, an employer's interests should be limited to an employee's performance of his or her job duties. So long as an employee's performance is up to par, his or her disability - mental or physical - is irrelevant to the employer unless raised by the employee.
If, however, an employee is not performing as expected, an employer can (and should) get involved in an effort to get the employee up to speed. An employee who attempts to use a disability as an excuse for poor performance after the fact, however, may be given some leeway but not on an ongoing basis.
First, determine what objectives are not being met. It is essential that the employer be able to articulate the concerns with specificity. Remember, the employee can correct his or her behavior only if he or she knows what it is that needs to be corrected.
Second, communicate the issues to the employee. Again, unless the employee knows that the employer perceives problems with the employee's job performance, the employee cannot work to correct them.
Third, leave the medical diagnoses to the medical professionals. An employer should not attempt to diagnose the medical issues of its employees. Unless raised by the employee, the discussion should not include anything about mental impairment.
Step 2: Work With - Not Against - the Employee
An employer should keep in mind that the foremost goal is to protect the organization's most valuable assets - its people. It is far less costly to keep a good performer on board with a reasonable accommodation than it is to hire and train a replacement. Thus, once an employee communicates that a mental impairment is impacting his or her job performance, the employer should proceed to work with, not against, the employee towards a viable solution.
An employer should also keep in mind that not all employees with mental impairments will need accommodations to do their job and some may only need few cost-effective accommodations. In addition, symptoms of some mental health disorders can be used to the employer's benefit in the workplace. For example, an employee with obsessive-compulsive disorder (OCD) could be seen as a perfectionist with an exceptional eye towards details.
Step 3: Engage Immediately
The only thing more important than having the right attitude is timing. The interactive process should begin immediately once the employer has knowledge of an individual's disability and that the disability is impacting the employee's ability to perform his or her job.
Step 4: Be Reasonable
The ADA requires an employer to offer a reasonable accommodation to qualified individuals with a disability, i.e., an individual who can perform the essential functions of the position with or without a reasonable accommodation. Like many things in the law, what is considered reasonable is subject to many interpretations. In the context of ADA accommodations, though, the "reasonableness" bar is set very high; an employer is expected to do as much as possible to accommodate an employee with a disability.
There is no right answer to any particular accommodation request. The best approach - and the one required by the ADA - is a flexible one. An employer should consider the following questions when working with an employee to determine possible accommodations:
- What limitations is the employee experiencing?
- How do these limitations affect the employee's job performance?
- What specific tasks are made difficult or impossible by the limitations?
- What can be done to help with the specific tasks?
The best approach also involves both the employee and the employer. Often, the employee is in the best position to identify potential accommodations, particularly where the interactive process is truly a cooperative one.
Reasonable accommodations for mental disabilities often fall into one of the following categories:
- Emotions; and
Attendance. Requests for reasonable accommodation in the context of an employee's attendance present challenging issues to many employers. An employer should not immediately assume that attendance issues cannot be accommodated. Flexible scheduling, scheduled leave for counseling, even a modified break schedule are just some examples of possible accommodations.
The Equal Employment Opportunity Commission (EEOC) strongly discourages employers from adopting and enforcing policies that provide that an employee will be terminated automatically once he or she reaches a pre-determined maximum amount of leave (e.g., three months, nine months). These types of policies (frequently referred to as no-fault or inflexible leave policies), by definition, fail to take into consideration what may be reasonable under a particular set of circumstances. In addition, these policies do not meet the employer's obligation to engage in the ADA's interactive process.
An employer should, at a minimum, build into its attendance-related policies a case-by-case assessment of the individual's situation. An employer should also continue dialogue with its employees and not quit the interactive process once an employee asks for more leave time. Typically, the loser in a lawsuit is the one who gives up on the reasonable accommodation conversation and fails to act in good faith.
Emotions. A mental impairment that causes the employee to have difficulty dealing with emotions presents a unique challenge in the modern-day, hands-off workplace. When presented with this situation, an employer should not attempt to take on the role of caregiver or counselor. At the same time, an employer need not turn a blind eye to emotional outbursts, particularly if they are disruptive to the work environment.
Sometimes, the first step in this situation is to ensure that the employee is taking advantage of all of the resources already offered by the employer, e.g., an employee assistance program (EAP).
Scheduling can be key, as well. For example, permitting the employee to make telephone calls during working hours may enable the employee to get the support he or she needs to avoid an emotional outburst. And, as with attendance-related limitations, flexible work schedules - particularly with regard to breaks - are often of significant help.
An employer should be aware that if an employee's mental impairment is such that keeping the employee in the job would create a direct threat to the health or safety of the employee or his or her co-workers, then the employer might be excused from making an accommodation to allow the employee to stay in his or her regular job.
Concentration. Individuals who experience difficulty concentrating can benefit from a number of different accommodations. For example, allowing the employee to listen to music or white noise is often an effective - and inexpensive - option.
Employees with concentration impairments often benefit from being allowed to work without interruption. For example, the employee could be permitted to turn off email and the telephone ringer for certain blocks of time.
Working with the employee to divide large projects into smaller tasks and objectives can be useful, as well.
There also are professionals who can be of tremendous assistance in crafting an effective accommodation. Solutions offered by third parties range from designing an improved physical workspace to time-management coaching to software and technology-based solutions.
Step 5: Follow Up
Coming up with an agreeable accommodation is not the end of the process. An employer should document the process along the way and then follow up once the agreed-upon accommodation has been implemented. This can be a critical step because it lets the employee know that he or she has not been forgotten and that the channels of communication remain open.
An employer should not follow up just for the sake of appearances. If the employee reports that the accommodation is not meeting his or her needs, the employer must reopen the dialogue, keeping in mind that the objective is to keep good performers on board and engaged.
In the case of performance, if the employee fails to improve his or her performance problems, despite being given an accommodation, the employer should proceed with discipline just as it would with any employee. An employer should consider involving legal counsel during the disciplinary process.
Step 6: Maintain Confidentiality
An employer should also consider what to tell - and not to tell - the employee's co-workers and supervisors. The safest answer is usually "nothing." Information about the employee's mental disability should be off limits. Instead, an employer should consider whether the employee's co-workers may benefit from training or coaching on how to deal with workplace conflicts. And the best supervisors will be on the lookout for gossip or rumors and will act swiftly to put an end to them before they infect the workplace and cause serious damage to the interpersonal relationships that are so essential to the success of any organization.
An employer should exercise extreme caution with employees' confidential medical information. Only HR should be given access to these records and only when there is a need to know. Medical records must be kept separate from the employee's personnel file.
Step 7: Train Supervisors
If properly trained, supervisors can use management techniques that foster an inclusive environment while also assisting HR in the accommodation process. For example, employees with certain mental disabilities may find it helpful to have a supervisor that:
- Meets with them regularly;
- Provides daily feedback on their performance;
- Clearly communicates performance objectives;
- Provides open communication channels (doors always open style); and
- Leads a sensitivity training for all employees.
An employer should also consider having a reasonable accommodation policy and training supervisors on such a policy. This will help ensure that supervisors handle accommodation requests properly and consistently. A formal policy also helps an employer document its efforts to comply with the ADA.