Mental disorders, threats of suicide, medication side effects, addiction—they create some confusing issues with the Americans with Disabilities Act (ADA).
Here are some points managers need to know about the ADA and disciplining, firing, and hiring staff who come under these umbrellas. They are outlined by employment law attorney Myra K. Creighton of Fisher & Phillips in Atlanta.
Are medication side effects protected by the ADA?
Yes. And that applies even if the ADA doesn’t cover the condition being treated.
Suppose an employee with a condition that doesn’t carry ADA protection takes medication that makes him process things slower.
Depending on the requirements of the job, the mental slowness could be covered. And if that employee is still able to perform essential functions of the job, the office has to provide a reasonable accommodation.
Are alcohol and drug abuse protected?
Current use is not, Creighton says, and the ADA generally defines current as within five weeks.
But beyond that, the person is considered a recovering alcoholic or addict and does get protection.
That applies to both employees and job applicants.
Suppose a nurse applies for a job and the office finds that her license was earlier revoked for taking controlled substances and she is now a recovering addict.
The office may well argue that she cannot perform an essential function of the job, which is handling narcotics. But that argument is fruitless. It’s unfair to assume she will relapse. That’s no justification for not hiring her.
Is stress a disability?
No. Stress is not an impairment. Nobody can request an accommodation for being stressed out.
But be careful, Creighton says. Say the wrong thing and that stress could turn into a disability.
A remark such as “you seem depressed” or a comment that someone appears to have a mental condition can be construed as proof the office perceives the individual as having a disability. And perception of a disability brings in the ADA, even if no disability exists.
Are mental disorders covered under the ADA?
Yes, but the disorder has to be an impairment severe enough that it substantially limits a major life activity. Bipolar disorder and depression, for example, can fall into that category.
Creighton points out, however, that it can be difficult to evaluate whether someone actually has a mental disorder, so the office may need to get medical evidence as well as an explanation of the problem involved.
Can the office require medical proof of the mental disorder?
Yes. And if the staffer has requested a specific accommodation, the office can also require proof that the accommodation is necessary to do the job.
Some requests push the limits, she says, such as “I have ADD and I can’t work in this carrel with other people around. I need an office of my own.” Or “I’m bipolar and I can’t keep working the swing shift. The doctor says I need to work the straight shift.”
Simply ask the doctor
- Does this person have an impairment that substantially limits her as compared to most people?
- What is the impairment?
- She says she needs Y accommodation to do her job. Are there other accommodations that would accomplish the same thing?
The doctor may be able to recommend an accommodation that poses less of a hardship to the office’s operations than the one the employee is asking for, Creighton says.
Can the manager fire an employee with a mental disorder who threatens people?
Yes. The ADA does not protect anybody who makes a direct threat in the office.
Creighton cites a case where a man with post-traumatic stress disorder reacted violently when people touched him or even brushed by him. “If he didn’t see it coming, he would grab them.”
The disorder was ADA-protected. But when the man told management his condition was getting worse and he had the capacity to hurt someone, the employer fired him on the grounds that he was a direct threat to the office. And the court agreed.
There is a limit to that, however. Someone who has made threats elsewhere but has since been treated for a mental disorder is not necessarily a threat and can come under ADA protection. In one case, Creighton says, a company fired an employee when it found he had killed someone and had been treated at a mental institution. The man claimed ADA protection and won.
On the other hand, if an employee says, “I want to kill you,” treat is as a direct threat and fire them.
Can the manager fire an employee who attempts suicide outside the office?
No. An after-hours suicide attempt is not a direct threat to anybody in the office. What’s more, that person could be ADA-protected because the desire to kill oneself is the inability to care for oneself, which translates to an impairment that substantially limits a life activity.
When an employee talks about committing suicide or threatens it, treat it as a behavioral issue because it’s disruptive and hurts productivity.
The safest response is to offer the person time off to deal with the problem and at the same time make it clear that “we need this kind of conversation to cease.” Say, “There are avenues for you to seek assistance but this is not the environment to pursue that in.”
What about misconduct that occurs as the result of a disability? Is it protected under the ADA?
No. Misconduct is not an impairment. It’s a behavior. And the office can terminate for misconduct even if it’s caused by a disability.
Creighton gives the example of a grocery store employee who was fired for cursing and making racially charged comments to customers. The behavior was caused by Tourette Syndrome and the man claimed ADA protection but the claim didn’t stand.
The same holds if someone is ADA-protected for alcoholism, she says. If that person shows up to work drunk, firing is in order.
The office can hold people with disabilities “to the same standards to which it holds everybody else.”
