Employee discipline can be complicated in any situation, but when mental illness and disability factor in, employers often aren’t sure how to proceed. Can an employee with a diagnosed mental illness be disciplined even when the disability (mental illness) is the reason behind the misconduct?
Mental Illness and Disability: No Excuse for Misconduct
Mental illness and disability are not valid excuses for employee misconduct and employers are not obligated to ignore misconduct just because the employee in question has a disability – even if that disability is in fact the cause of the misconduct. For example, an employer is not obligated to allow exceptions to company policies such as attendance, safety, anti-harassment, non-violence, etc.
The inability to adhere to company policies may mean that an individual is not qualified for the role. This is an important distinction because the ADA requires reasonable accommodations for disabled individuals who are qualified. If the individual is unable to meet the basic company policies, they may not be qualified.
That said, it doesn’t make the situation any easier when an employer is faced with a disciplinary action or even termination for a disabled individual. Before taking any action, ask yourself:
- Will the decision seem fair when viewed from the outside?
- Are you being consistent? Have you treated others in exactly the same way when they’ve behaved similarly?
- Is there a business-based reason for taking action? Can this reason be articulated clearly? Has it been communicated to the employee?
- Do you have full documentation? Have you documented all conversations about the situation?
Another good piece of advice is to consider whether a leave of absence might be a reasonable accommodation that could improve the situation for everyone.
Mental Illness and Disability: Should You Require a Fitness-For-Duty Examination?
What if the question is not about discipline, but about whether or not it is safe to allow the employee to continue working in their role? Employers need not accommodate an employee if that employee would pose a direct threat – i.e. a significant threat of substantial harm to him or herself or to others. If an employer is concerned, then the employer is entitled to send the employee for an examination to determine whether a direct threat exists. The factors that will be considered are the duration of the risk, severity of potential harm, likelihood of harm, and the imminence of harm.
In a recent BLR webinar, Ronald Schouten confirmed this, and gave a word of caution for employers: "The employer can require the employee to submit to such an examination (and failure to do so can lead to termination) . . . [but] do not send an employee for a fitness-for-duty evaluation if you’ve already decided that you no longer want him or her in your employment. You cannot leave a management decision like that to a clinician."
Doing so creates greater risk for the employer because the clinician could determine that someone is indeed fit-for-duty (with or without accommodation), when the employer thought otherwise. The key question an employer should ask before requiring a fitness-for-duty exam is whether or not they would accept the employee back to work if he or she is found fit for duty; if not, then the situation needs handled and the exam may not be of any help.
Besides the risk of having a clinician not come to the conclusion you’re expecting, fitness-for-duty exams for individuals with mental illness and disability can also pose a risk of discrimination claims if handled inappropriately. Susan G. Fentin told us (in the same BLR webinar): "Also, you have to remember that when you’re going to be sending somebody for a fitness-for-duty examination, you have to do that based on objective evidence that the individual’s presence in the workplace could be harmful.
"Simply because somebody has told you that they have been diagnosed with schizophrenia [for example], does not mean that they are necessarily going to be a candidate for a fitness-for-duty exam. In fact, sending somebody for a fitness-for-duty examination without that sort of objective evidence can be evidence of discrimination."
In short, fitness-for-duty examinations are allowed for individuals with mental illness and disabilities, but should be conducted only if there is an objective reason to do so. Be aware of the situation being created. Regardless, always consult with counsel before terminating a disabled individual.
For information on what other problems mental illnesses that qualify as disabilities can pose for employers, see our related article.
For more information on appropriately handling disciplinary issues for employees with any mental illness and disability, order the webinar recording of "Depression and Other Mental Illness Under New ADA: Accommodation Practices for HR." To register for a future webinar, visit http://catalog.blr.com/audio.
Attorney Susan G. Fentin is a partner in the labor and employment firm of Skoler, Abbot & Presser, P.C. Her practice concentrates on labor and employment counseling, advising large and small employers on their responsibilities and obligations under state and federal employment laws, and representing employers before state and federal agencies and in court.
Dr. Ronald Schouten is the director of the Law and Psychiatry Service at Massachusetts General Hospital (www.massgeneral.org) and an associate professor of psychiatry at Harvard Medical School (hms.harvard.edu). His clinical and consultation practices are focused on executives and professionals confronted with career issues, work-life balance problems, and mood and anxiety disorders.