Are you prepared for questions like these:
- A top-performing employee is diagnosed with depression and now says her medication makes it impossible for her to get to work on time. Must you change her work schedule?
- An applicant voluntarily informs you that he is intellectually disabled, but says he can perform his job with a job coach. Is that a “reasonable” accommodation?
The ADA requires employers to reasonably accommodate applicants and employees who have mental or physical disabilities if they are qualified to perform the job’s essential functions with or without a reasonable accommodation.
Still, it’s a tricky issue. These questions and answers come from recent court cases and EEOC guidance:
What if performance slips?
Q: How should we handle an employee whose performance is deteriorating and whom we suspect may have a mental disability?
A: You can inquire about an employee’s potential mental disability if the inquiry is job-related and consistent with business necessity. The EEOC says that means an employer can ask about possible mental disabilities when the employer has a reasonable belief that performance of essential job functions is impaired by a medical condition.
The EEOC says you must first have some objective evidence that the deteriorating performance is related to a mental condition (such as knowledge that the employee suffered from a mental impairment in the past) before making such an inquiry. Thus, a supervisor can inquire about an employee’s repeatedly forgetting tasks or being late for work. Supervisors cannot, however, ask whether a mental condition has caused those problems, unless they have some objective evidence.
Q: What should we tell other employees about the accommodation?
A: Keep private all information on employees’ medical conditions, including any mental disability. Maintain such information separate from general personnel files as a confidential medical record. You may need to disclose the employee’s mental disability to a supervisor if it’s necessary to provide an accommodation.
Excuse for misconduct?
Q: Do we have to tolerate misconduct by employees with mental disabilities?
A: No. Most courts and the EEOC agree that employers can discipline employees with mental disabilities for conduct-rule violations.
You can generally hold mentally disabled employees to the same job-related standards that apply to all employees.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Lessons from the 2006 SHRM conference: Online-Only Handbooks: a risky legal proposition
- Imperial Sugar fined $8.7 million in wake of deadly explosion
- No personal liability in FEHA retaliation cases
- Will 'Bullying Victim' Become The Next Protected Category?