September 2014 HR Brain Teaser

Brain Teaser Courtesy of EPLI Pro™

Mental Health Issues - Not Easy!

Consider the following situation:  You hired an employee in November. He seemed fine in the interview…just a little nervous. After he was hired, you observed that he is a slow learner (maybe a learning disability), and has a difficult time with criticism.

Now, the employee has been having what appear to be panic attacks. You have moved him to several different positions. Unfortunately, he is still having panic attacks, hindering his ability to interact with the public, which is an essential function of his job. Though you are willing to give someone a chance, you really do not think this guy is going to get better. You would like to terminate him; after all, he is an at-will employee.

Is termination the best option?

A.  Absolutely; though you feel sorry for the guy, you need people who can work, and you do not have time to babysit them.

B.  Maybe; since he has not told you he has a disability or needs an accommodation, you do not have to worry about potential disability discrimination.

C.  Yes; if he has some type of physical condition or disability, you understand that you would have to accommodate him, but you cannot accommodate a mental problem.

D.  No, or at least not yet. You need to learn more about his condition before making any decisions.

Answer:  D    No, or at least not yet. You need to learn more about his condition before making any decisions. The Americans with Disabilities Act (ADA) protects individuals from, among other things, discrimination in employment on the basis of their disability. If an employee can perform the essential functions of the job with or without a reasonable accommodation, employers may not take adverse action on the basis of the disability.

Mental disabilities are often more difficult to address in the workplace because of the stigma involved, and lack of understanding. In our situation, the employee may have a mental disability, and began having performance problems related to this possible disability. The employee has not disclosed that he has a disability, although the supervisor suspects it.

Let’s presume the supervisor decides (appropriately) to talk to the employee about his performance. In the course of the conversation, the employee may blame his performance problems on a mental disability.  If an employee states that his disability is the cause of the conduct or problem, or requests accommodation, the employer may still discipline the employee for the misconduct if the conduct rule is job-related and consistent with business necessity, provided it holds other employees to the same standard. 

If the discipline is something less than termination, the employer may ask about the disability’s relevance to the misconduct, or if the employee thinks there is an accommodation that could help him avoid future misconduct.

If an accommodation is requested, the employer should begin an interactive process to determine whether one is needed to correct a conduct problem, and, if so, what accommodation would be effective. The employer may seek appropriate medical documentation to learn: 1) if the condition meets the ADA’s definition of disability; 2) whether and to what extent the disability is affecting the employee’s conduct; and 3) what accommodation(s) may address the problem. The employer should provide the employee with his job description, and have his doctor evaluate his ability to perform his specific job function.

An employer may not refuse to engage in the interactive process with an employee who has been subject to discipline, as this would be a violation of the ADA. Although mental disabilities can be more difficult to address, employers have an obligation to do so. If the employee continues to have performance issues or violates conduct standards, despite the reasonable accommodation, employers may move forward and consider termination. Even so, there is likely to be risk associated with terminating an employee who has a mental disability, and employers should not do so without first talking to an employment law attorney or human resource professional.

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