It is disconcerting to consider the issues an employer faces with a mentally impaired employee.

            The Americans with Disabilities Act and the Texas Human Rights Act protect employees with mental impairments when they are employed by a company with at least 15 employees. But many employers are unprepared to legally interview, hire, employ and occasionally fire a mentally impaired employee.

            Generally the ADA protects employees who are qualified for the job but whose physical or mental impairments substantially limits major life activities such as concentrating or interacting with others. Employers must reasonably accommodate these disabled individuals if they can perform the essential functions of the job.

            Most employers I work with are willing to give mentally ill employees a fair chance and many mentally impaired employees are performing satisfactorily at all sorts of jobs.

However, whenever a law is adopted that is as vague and hard to administer as the ADA is with mental disabilities, we are going to see some over-the-top legal opinions. These cases raise alarm among employers and give we employment lawyers very little to work with in advising our clients about how to keep it legal in the workplace.

            For example, one of the most outrageous cases involved a mentally ill service technician that Pacific Bell refused to rehire. The employee lied on his application and didn’t reveal a conviction for battering a police officer nor a finding of not guilty by reason of insanity for attempted murder. He had also spent two years in a mental hospital. When all of this was discovered about 3 months after he had been working, PacBell fired him for application fraud.

            The employee’s job was to go into customer’s homes unsupervised to install or repair phone lines. PacBell thought that job might be unsuitable for a person with his violent tendencies and considered him unqualified. But the federal Ninth Circuit Court of Appeals disagreed. PacBell had no policy against employing people with violent pasts and had at least one other employee with a felony conviction for domestic violence. So the court ruled that PacBell had discriminated against the service technician with a history of mental illness and violence.

            In a case involving a bipolar insurance salesman, the employee had worked at the large insurance company for 35 years before he was fired in 2001. Beginning in 1992, his sales performance began to decline each year. He was given warnings, but terminated after nine years of poor performance.

In 1997 he revealed for the first time that he had been diagnosed as bipolar 20 years before. He had never required any accommodation before, but now he wanted to be reassigned to another sales job that required high performance standards. The insurance company refused, since his low performance didn’t merit the plum reassignment. 

Although the district court agreed with the insurance company, the appellate court decided that the insurance company might have to reassign him to the other sales job and remanded the case for trial.

Cases like this are very disturbing for employers who want to do their best to comply with the law, but can’t figure out how to operate in a world where poor job performance has to be accommodated and potential violence against customers by an employee has to be tolerated.

While there is no foolproof way to accommodate mentally ill employees because of the individual nature of each disabled employee’s capabilities and needs, here are a few suggestions for employers:

·         Don’t use any kind of psychological testing on applicants that could reveal whether an applicant is suffering from problems like depression, schizophrenia or paranoia. While personality testing is usually acceptable, if it crosses the line into psychological diagnosis, it could be discriminatory.

·         Apply the same policies and expectations for all employees so that your decisions are consistent and not discriminatory. If you are worried about employee violence or behavioral problems, first put written policies into place to prohibit these acts, then apply them consistently.

·         Don’t be afraid to allow your supervisors to discipline low-performing employees. As one court said, “The ADA is not a license for insubordination”. However, if you know that an employee is suffering a mental impairment, the disciplinary process may need revision to accommodate that employee.

·         Don’t try to diagnose the employee. If an employee identifies himself to you as suffering from a mental impairment, get as much information as you can from the employee and his treating psychiatrist, if possible, before making any decisions about the terms or conditions of his employment.

·         Act slowly and carefully when dealing with a mentally impaired employee. Even if her behavior or her request for accommodation angers you, as the employer you must be the rational, deliberate one, considering all the legal and medical information you can find before you make a decision.