Dear Rita: Ruth has worked for our nonprofit for about three years as a Mental Health Counselor. Until recently she has been an excellent employee. However, starting about two months ago, Ruth’s behavior has gone into a problem-filled free fall. Her supervisor reports that she has stopped talking to other employees, refuses to attend mandatory meetings, and walks off the job without notice exploding in anger. Several clients have requested a change to another therapist, complaining that Ruth seems unfocused and just plain weird during their sessions. As the Human Resources Director of a large nonprofit, I am at a loss for what to do, but I am beginning to feel that Ruth is “nuts.” Signed, Frustrated in HR
Dear Frustrated: It sounds like you should explore whether Ruth could be suffering from a mental health disability; and I strongly caution you to never use words like “nuts,” “wacko,” or “crazy” to describe an employee. Your obligation is to ensure that you don’t discriminate against any employee with a disability and to focus on the problem in objective terms, instead of the person.
What can you do?
It’s clear that Ruth’s behavior is negatively impacting your workplace and she, as a mental health professional, is not able to serve your clients. First, have a talk with Ruth about the issues in objective terms; focus on the behavior. Let her know that she is a valued employee and ask the question: Is there anything we can do for you to help you perform your job? Listen carefully! She may tell you, for example, that she is going through a rough divorce. If that is the case, you don’t have to go the disability route, but you could still ask her if your nonprofit can help her get back on track. You should involve her supervisor, possibly by issuing a Performance Improvement Plan to alert her to what is required for her to keep her job.
If she has no self-awareness of her behavior or its cause, then I recommend you take a two-fold path: (1) Her supervisor should address the performance/conduct issues, either verbally or in writing; (2) As the HR professional, you can give her a medical certification form requesting a health professional’s opinion as to what accommodations, if any, could be made to enable Ruth to perform the essential functions of her job. This reaction to Ruth’s condition should be the same reaction you would have to an employee who passed out in the office from low blood sugar or told you she has cancer. In each case you would begin the interactive process to determine if there are any workplace accommodations you can make that would enable the employee to carry out her job. And in each case, the employee’s medical condition and the process are CONFIDENTIAL.
Because of the stigma attached to mental disabilities and unusual but high-profile cases that involve violent behavior, employers are hesitant to tackle mental health issues, partly out of fear. However, 54 million Americans suffer from some form of mental disorder in a given year; so there may be dysfunction but it very rarely results in violent behavior.
Mental disability defined
First let’s answer an important basic question: What constitutes a mental disability under the Americans with Disabilities Act (ADA)? A mental disability is a condition that substantially limits one or more major life activities, including focusing on work, thinking clearly, interacting with others and being able to perform the job the employee was hired to do. Whether these activities are substantially limited is completely fact-based. Having said this, there are some diagnoses that are guaranteed to be disabilities under the ADA. The ADA specifically lists bipolar disorder, general anxiety disorder, schizophrenia, major depressive disorder, and post-traumatic stress disorder. When considering whether an employee has a disability, remedial effects are not considered. For example, an employee who is diabetic is considered disabled, even though the employee’s insulin stops her from passing out in the workplace. Likewise, an employee who is taking psychiatric medicine is still disabled, even though the meds control the employee’s symptoms and enable the employee to perform the job.
Examples of reasonable accommodations
So, let’s suppose that Ruth discloses that she has the mental health disease of bipolar disorder. Employees with bipolar disease are generally intelligent and creative employees who, if receiving proper treatment, can be very productive. But what are reasonable accommodations for this particular mental disability? Work accommodations can include time off to adjust to a new medication or treatment, flexible hours, a reduced work schedule, a distraction-free work setting, and regular breaks. Supervisors should be trained to give the employee clear, written performance and deadline expectations, to break job tasks into smaller parts, and to give frequent feedback. Check out the helpful government resource, Job Action Network (JAN), which offers ideas on how to accommodate disabilities, including mental disabilities.
The bottom line is that you and the employee first attempt to find an accommodation that allows her to perform the essential function of her job — which in Ruth’s case is to competently treat patients under her care. If that cannot be achieved, she cannot continue to work for you as a therapist but should be considered for a vacant position for which she is qualified and can perform the essential functions of the job. If you don’t have such a position, then Ruth cannot work for you. Your best defense in an ADA discrimination lawsuit is documentation of your attempts to find reasonable accommodations that would allow the employee to perform her job duties via the interactive process.
Pamela Fyfe is an attorney with the Nonprofits Insurance Alliance Group (NIA Group). She has practiced employment law for 25 years — representing management in wrongful termination, discrimination and sexual harassment cases. In her current job she advises nonprofits with D&O insurance about employment issues — before they are sued — to help keep them out of court. The NIA Group is a sponsor of Blue Avocado and American Nonprofits.