The National Institute of Health has determined that roughly 1 in 4 Americans experience mental health issues, such as bipolar disorder, schizophrenia or clinical depression. Naturally some of these people work for you. Moreover, uncounted millions are on the cusp of a mental health condition. The effects of these medical conditions can have an adverse impact on your bottom line because of absenteeism, tardiness, doctor’s appointments and medical leave. Naturally, you need a productive workplace but how do you balance it with your employee’s legal rights?
All employees have legal rights regarding mental health under the Americans With Disabilities Act and the Family and Medical Leave Act. The ADA protects such individuals if their condition is a serious health condition (which you want decided by a qualified medical practitioner) that impairs/substantially limits a major life activity. Under FMLA, it is likely a diagnosed mental health condition will be considered a serious health condition, thus permitting medical leave. Courts have found many mental health conditions to be serious health conditions but this determination is made on a case-by-case basis with the engine being driven by the employee’s own doctor who certified the condition. Once sanctioned, the employee is entitled to 12 weeks of leave, with the most troubling aspect for the employers being intermediate leave.
The bottom line legally is that an employer may not take adverse action (demotion, transfer, termination) under the FMLA/ADA because of the employee’s disability/serious health condition. One must consider reasonable accommodation before such a decision under the ADA which an employer must document. Critical to the analysis are job descriptions which outline the essential function of the position so you may outline how the employee is not meeting those expectations. Otherwise, routine legitimate business actions can be challenged as unlawful by the EEOC or an employee’s attorney as disability discrimination.