Best Practices For Managing Employees With Mental Illness
Published by Eric A. Welter and Sarah Tudor Glaser on August 28, 2017
Navigating the waters of mental illness can be tricky, particularly if the employee shows signs of trouble, but has not confided in you.
In June, the Equal Employment Opportunity Commission issued a press release stating that the EEOC had filed suit against an operator of a Kentucky Fried Chicken restaurant franchise on behalf of a former manager in Georgia for what appears to be (taking all of the allegations as true) pretty egregious conduct directed towards the manager’s use of medication for bipolar disorder. At this point, we cannot know what actually happened but this case highlights an important issue —- coping with and managing employees with mental health illnesses can be challenging.
As an initial matter, actual or perceived mental disorders can be disability conditions under the Americans with Disabilities Act (ADA). The ADA protects employees from discrimination for mental and psychological disorders, including (but not limited to) diagnosed emotional or mental illnesses (like major depression or bipolar disorder), specific learning disabilities, as well as intellectual disabilities, and requires employers to consider reasonable accommodations just as it would if the disability was a physical one.
Under the ADA, once an employee has identified a disability, mental or physical, the employer must engage in the interactive process. If an employee approaches you with a request for accommodation in connection with a mental disability, treat it just as you would a physical disability —- engage in the interactive process, request documentation from a medical provider if it is appropriate under the circumstances, and attempt to determine whether there is an accommodation that is reasonable. Do not forget that a leave of absence can be a reasonable accommodation.
A more difficult situation arises when it becomes apparent (or perhaps you just suspect) that an employee may be suffering from a mental illness, but they have not approached you about it. If the employee is having performance issues, it is appropriate to ask them if they are okay. This may provide them with the opportunity to let you in on what is going on, at which point you should begin the interactive process. If the employee tells you they are fine, take them at their word, and deal with the performance issue alone. If your company has an Employee Assistance Program, you might want to remind them of it. Always document your conversations, even if the employee tells you there is nothing going on and do not hesitate to involve legal counsel if you are unsure about how to handle a particular situation.
What if the employee tells you they are fine, but it is clear they are not, or you are concerned for the safety of your other employees? If it is the former, stick to the employee’s job performance —- are they performing their job? If not, some or all of the following may be appropriate: coaching, a performance improvement plan, progressive discipline, and/or a referral to the company’s EAP. If it is the latter, and you are concerned for your other employees’ safety, your actions should be two-fold. First, consider whether there is performance counseling on the list above that may be appropriate (as appropriate to the level of the threat —- for example, treat a one time outburst from an employee under a lot of stress differently than an outright threat of violence). If you believe that the employee poses a direct threat to the health or safety of others in the workplace that cannot be addressed through a reasonable accommodation, termination of their employment may be appropriate. If you are considering whether termination is appropriate due to a direct threat to safety, ensure that you document the circumstances that lead to the decision, including why there is no reasonable accommodation that could address the issue. In some instances, it may be appropriate to engage in the interactive process with the employee before making a decision on termination. Second, consider whether an increase in security at the workplace is necessary, perhaps in the form of increased control over who can access the building, increased security personnel, or increased cyber monitoring.
Finally, treat an employee’s return to work following a leave of absence for a mental health issue the same as you would a physical issue. Obtain a return to work release from the employee’s health provider (if that is your normal practice). Additionally, consider whether a transition plan would be appropriate to help the employee return to their daily routine and if so, involve the employee, their supervisor, and any other pertinent participants so there is buy in from all sides.
Navigating the waters of mental illness can be tricky, particularly if the employee shows signs of trouble, but has not confided in you. Best practices include engaging in the interactive process when appropriate, checking in with employees who may appear to be struggling with mental illness, and if they say they are okay, addressing their performance through an appropriate combination of counseling, progressive discipline, PIP, and/or leave of absence. Termination may be appropriate in the event of a direct threat to the safety of others. Always document your conversations, and seek legal counsel if you are concerned.Topics: ADA, Americans with Disabilities Act, Disability Accommodations and Access, Discrimination, EEOC, Employment Discrimination and Harassment, Equal Employment Opportunity Commission, Financial Services, Government Contracting, Healthcare, Hiring, Hospitality, leaves of absence, Media & Entertainment, Performance Management & Termination, Retail, Technology, Transportation, Workplace Safety