Navigating Mental Disabilities in the Workplace

July 12, 2017

Knowledge

Meet the author

Stuart Jackson

Partner

Little Rock, AR

The Types of Mental Impairments Your Applicants and Employees May Face

There are any number of mental impairments that can impact a person’s ability to do his or her job, such as:

Depression;
Obsessive compulsive disorder;
Post-traumatic stress disorder;
Bipolar disorder and borderline personality disorder;
Seasonal affective disorder;
Learning disabilities; and
Anxiety.

These impairments can impact people in a variety of ways – some may have problems concentrating, some may have organizational issues, some may have attendance issues, some may have problems interacting with others and some may have time management issues.

How to Properly Obtain Information About Employee Impairments

While the existence of a mental impairment might be revealed during the application process – perhaps requiring modifications to a pre-employment test for a learning-disabled applicant – it more often comes up when there is a job performance issue. Perhaps, in response to a write-up or a poor evaluation, an employee discloses that he or she has a mental impairment. Or, in response to disciplinary counseling about tardiness, an employee reveals that he or she suffers from depression and has a hard time getting out of bed. How do you respond?

Your first step will be to request additional information from the employee. Given that mental impairments are not obvious, you are entitled to request information from the employee’s doctor or mental health professional. One option for doing so is to put your request in writing – while describing the employee’s essential job functions and the fact that the employee has disclosed the existence of a mental disorder, ask a) whether the employee can perform the essential elements of the job, with or without accommodation; b) the expected duration of the impairment; and c) for any suggested accommodations. Ask the doctor or mental health professional to respond in writing (perhaps on the form you provide) by a set, but reasonable, date. To ensure compliance, talk to your attorney before sending out the request.

Be sure to include the Genetic Information Nondiscrimination Act (GINA) disclaimer at the end of any written letter to a doctor or mental health professional. The Equal Employment Opportunity Commission’s (EEOC) model language states, “The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. `Genetic information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.” Failing to include that safe harbor language could subject you to an EEOC charge.

Finally – and this should go without saying – any information you obtain from the individual or the doctor/mental health professional must be kept confidential. Do not keep any type of medical information in an employee’s regular personnel file.

How to Accommodate Mental Impairments

One of the most obvious ways to accommodate (in the general sense) a current employee with a mental impairment who is currently unable to work or needs time for treatment is to offer the employee leave, whether it be Family and Medical Leave Act (FMLA) leave or some other type of leave.

The United States Department of Labor’s Office of Disability Employment Policy offers several other good suggestions for potential accommodations, which could apply to applicants or current employees, including:

Flexible workplaces (think telecommuting or working from home);
Flexible hours, such as part-time work hours, job sharing and flexible start and end times;
Modifications to the work area, including private areas in which to work, reduction of workplace noise and even natural or full spectrum lighting;
Modifications to job duties, including modifying or removing non-essential job functions, dividing large assignments into more discrete tasks or goals and additional training or modified training materials; and
Changes to the ways employees are managed, including using written tools such as “to do” lists or step-by-step checklists, using different types of communications (verbal, written or both) to convey work instructions and weekly or monthly meetings to discuss work issues.

The Department of Labor also recommends written work agreements that include agreed-upon accommodations, long-term and short-term goals and, importantly, expectations and consequences for not meeting expectations. Another possible accommodation to consider is a transfer to an open job, although you are not legally required to create a job for a disabled person.

Every accommodation situation will be different, requiring you to sit down with the employee and discuss options that might work. While some amount of leave time might be the ideal accommodation in one case, a flexible work schedule or “to do” lists might be the best options in another. Regardless of what is decided, be sure to document both your discussions with the employee and your attempts to accommodate the employee’s disability.

Don’t be overwhelmed or intimidated by a request to accommodate an employee with a mental impairment. Obtain the information you need to make a reasonable decision and, by all means, talk to the person about ways to get or keep him or her on board.