Thursday, January 5, 2017

A Particular Challenge: Managing Mental Disability in the Workplace

Understanding disability discrimination and reasonable accommodation is a challenge for employers, and particularly for the in-house counsel and HR professionals who must manage disability issues in the workplace.  As you probably already know, any employer with 15 or more employees for at least twenty weeks a year is subject to the Americans with Disabilities Act of 1990 (ADA), which prohibits discrimination against employees or job applicants with disabilities. There are comparable state laws with similar (and sometimes broader) prohibitions.  An individual with a disability is a person who has, has had, or is regarded as having a physical or mental impairment that substantially limits major life activities. 
 
It can be particularly hard for employers to manage their responsibilities to applicants and employees with mental health disabilities. Conditions considered to be protected disabilities under the law include depression, post-traumatic stress disorder, bipolar disorder, anxiety disorders, schizophrenia, and many others.  Here are some practical pointers, based on the EEOC’s recent publication explaining the legal rights of those with mental health conditions. 
  • Mental disabilities are protected disabilities. The law treats mental disabilities exactly as it treats physical disabilities. It is unlawful for an employer to discriminate against or harass an individual because the person has a mental health condition. Unlawful acts include firing an employee, rejecting a candidate for a job or promotion, or forcing an employee to take a leave of absence because of his or her mental health condition. In addition, employers must provide reasonable accommodations to qualified individuals with mental health conditions, unless doing so would cause significant difficulty or expense for the employer.
  • Although covered employers can’t discriminate because of a person’s mental health condition, they don’t have to hire or retain an employee with a mental health condition for a job the individual cannot perform, or when the individual would pose a threat in the workplace. The disabled employee must be able to perform the essential functions of the job (with a reasonable accommodation, if necessary) and must be no threat to him or herself or to others in the workplace. 
  • Don’t rely on stereotypes or assumptions when deciding whether a person can perform a job or poses a risk to safety. Lots of mental disabilities are not well understood by the public, and lack of knowledge can result in poor handling of workplace issues.  As with the management of physical disabilities, any assessment of a mental disability must be based on objective evidence. Employers should seek the guidance of expert health professionals when in doubt.
  • In dealing with an applicant’s or employee’s disability, whether mental or physical, the employer does not necessarily get to know all the details. An employee has a right to keep his or her condition private, but an employer can ask medical questions—including questions about mental health—only in limited circumstances.  Remember that any medical information the employer does obtain must be kept separately and securely and should not be mixed with other personnel file information.
  • Once an employee is hired, an employer can seek medical documentation or require an exam from a healthcare provider if the employee requests a reasonable accommodation or if the employer believes the employee is not able to perform a job safely or to support an employee’s request for accommodation.
  • Be aware of the significant stigma involving mental health conditions, and don’t allow it to drive personnel policies or decisions. HR professionals and in-house counsel should have access to expert advice about how mental disabilities affect workplace behavior, and employers should be prepared to educate managers and supervisors when appropriate.
  • Don’t gossip or allow gossip about an applicant’s or employee’s mental disability. Do not tolerate harassment or teasing of individuals with mental health conditions—or those who are perceived to have such conditions. Promptly investigate and respond to incidents of mistreatment or harassment, just as you would investigate and respond to incidents of other forms of discrimination in the workplace.
Posted by Laura Bartlow