New guidelines for handling troubled employees

Arthur, an employee with a psychiatric disability, works for a lawn-care contractor. He usually has no customer contact and little regular contact with other workers. Lately, Arthur has come to work appearing disheveled. His clothes don't fit right and are torn. When co-workers try to engage him in small talk, he turns his back and walks away. When he must talk to a co-worker, he's abrupt and rude.

The employer's handbook requires employees to have a neat appearance and to be courteous.

Question: Is it legal for the employer to discipline Arthur?

Answer: Maybe not! To find out why, read on.

As you likely know by now, a federal law-the Americans with Disabilities Act (ADA)-protects disabled workers from job discrimination. But you may be only dimly aware that the ADA covers psychiatric disabilities. Complying with the ADA is tough enough when the worker has a physical problem. It can be a nightmare for an employer when the worker's disability is mental.

The Equal Employment Opportunity Commission (EEOC)-the federal office that enforces the ADA-says that about 13 percent of ADA cases involve emotional or psychiatric impairment. This includes workers with anxiety disorders, depression, bipolar disorder (manic depression) and schizophrenia. To help you understand and meet your legal responsibilities, here's a summary of EEOC guidelines.

What mental disorders does ADA cover? The ADA protects workers whose mental impairment limits "a major life activity" or if a worker has a history of such an impairment. The impairment may be one that restricts a worker's ability to learn, think, concentrate, interact with others, care for himself or herself or perform manual tasks. The impairment must be more than just a short-term problem. Consider these EEOC examples:

* Jane has had major depression for almost a year. She has been intensely sad and withdrawn, and has problems sleeping and concentrating. The depth and duration of her problems qualify her for ADA protection.

* Joe, on the other hand, was distressed by breaking up with his girlfriend and, for about a month, became agitated periodically at work. He sought counseling and his mood improved. Under the ADA, he doesn't have a disability. What conditions specifically aren't covered?

* People can't claim they're disabled and entitled to ADA protection because they illegally use drugs. This includes people who use prescription drugs illegally as well as those who use illegal drugs.

* Homosexuality and bisexuality aren't considered disabilities under the ADA. However, many state laws prohibit discrimination based on sexual orientation.

* The term "disability" doesn't include sexual behavior disorders, compulsive gambling, kleptomania or pyromania.

How do you handle psychiatric information? Your job-application form must not ask about mental or emotional illness or psychiatric disability, treatment or hospitalization. Beyond that, don't ask disability-related questions before you offer someone a job-although you can inquire further if an applicant asks for a reasonable accommodation for the hiring process itself.

For example, suppose an applicant for a secretarial job asks to take a typing test in a quiet location instead of a busy reception area because of "a medical condition." You can ask for additional information to verify that the applicant needs a quiet location for the test.

After offering someone a job, you may require a medical or psychiatric exam-as long as you do the same for all entering employees in that job category. Be sure to keep medical information, including psychiatric information, confidential. You can share this information with supervisors only on a need-to-know basis, and with first-aid and safety workers who may need to deal with emergencies.

Probably the knottiest problem is what to tell other employees when you provide time off or other accommodations to a worker with psychiatric problems. In response to co-workers' questions, you can say only that you're "acting for legitimate business reasons" or "acting in compliance with federal law."

What about special accommodations? Some workers with a disability-physical or mental-can perform a job if you meet them part way by providing what the ADA calls an "accommodation." The law requires you to provide a reasonable accommodation for a qualified person with a disability unless it would create an undue hardship for your business.

There's no magic formula for how an employee requests an accommodation. Suppose, for example, that Eddie asks you for time off because he's "depressed and stressed." Guess what? In the eyes of the EEOC, the words "depressed and stressed" are enough to put you on notice that Eddie is requesting reasonable accommodation. You may, however, ask Eddie to document his disability and limitations.

You have to pay attention, too, if a family member, friend or health professional contacts you about accommodating an employee who may have a problem.

Reasonable accommodations vary from case to case. Here are a few EEOC examples of accommodations that may reasonably be required for a person with a mental disability:

* Giving the employee time off from work or a modified work schedule.

* Installing room dividers, partitions or other sound or visual barriers between workspaces for an employee who has trouble concentrating.

* Moving an employee away from noisy machinery or lowering the volume of telephones

* Providing a job coach

* Modifying a workplace policy

* Adjusting supervisory methods

The EEOC offers these illustrations of the last two points:

* Workplace policies. A store doesn't let its cashiers drink beverages at checkout stations. Cashiers are limited to two 15-minute breaks during an 8-hour shift, in addition to a meal break. Lillian, a cashier, needs to drink water every hour to combat dry mouth, a side effect of psychiatric medicine she takes. To accommodate Lillian, the store should consider changing its policy against drinking beverages at checkout stations or changing its policy limiting cashiers to two 15-minute breaks.

* Supervision. Ted asks for more guidance and feedback because of limitations associated with his psychiatric disability. It's reasonable for Ted's employer to consult with him, his doctor and his supervisor to work out a plan for adding structure to his job, such as weekly meetings with the supervisor to review long-term projects.

On a related point, the EEOC says you're not expected to make sure that an employee takes his or her medication as prescribed.

Unacceptable conduct How can you address unacceptable conduct-or threats? You're free to discipline an employee for violating standards of conduct, even if the misconduct resulted from a mental disability. Nothing in the ADA prevents you from maintaining a workplace free of violence or threats of violence, or from disciplining a worker who steals or destroys property. So you may discipline a worker who steals money from you, even though the worker claims a disability caused the misconduct. The EEOC views a policy against employee theft as being related to a worker's job and consistent with business necessity.

But now, let's return to the case of Arthur, the sloppy and rude employee. He looks terrible and will hardly speak to co-workers, but he does get his work done. He claims his appearance and behavior are the result of his psychiatric disability. Can he be disciplined?

According to the EEOC, strict enforcement of the employer's dress code and courtesy rules would violate the ADA. These rules of conduct are not job-related for Arthur's lawn-care job. And, because Arthur has no customer contact and minimal contact with other employees, the standards aren't a business necessity.

The EEOC gives other examples of cases in which an employer may have to yield to or provide an accommodation for an employee's disruptive conduct if the conduct results from a psychiatric condition:

* A reference librarian frequently loses her temper, disrupting the library atmosphere by shouting at patrons and co-workers. Her employer may discipline her for violating a rule prohibiting disruptive conduct (the rule is job-related and consistent with business necessity) but the employee should grant a request for a leave of absence if it won't cause an undue hardship.

* An employee with depression is often late because his medicine makes him groggy in the morning. You can discipline him for his tardiness but you should consider adjusting his work schedule, perhaps allowing the employee to work from 8 a.m. to 5 p.m. instead of the normal 7 a.m. to 4 p.m. workday.

The EEOC does say you needn't put up with an employee who threatens a supervisor with physical harm.

Finally, a note on coverage: The ADA applies to businesses that employ 15 or more people. However, state laws may impose similar requirements on smaller businesses. See your lawyer for specific legal advice.

Fred S. Steingold practices law in Ann Arbor, Mich. He is the author of The Legal Guide for Starting and Running a Small Business and The Employer's Legal Handbook, published by Nolo Press (Berkeley, Calif.).

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