A recent national survey found one in six American workers suffers from some form of mental illness in a given month, ranging from situational anxiety or depression to serious disabilities. And it’s OK to talk about it.
Employment attorney Melissa Fleischer explained it is appropriate for employers to ask workers about their mental disability if objective proof indicates they are unable to perform functions of their job.
But be careful. The Americans with Disabilities Act (ADA) prohibits you from asking mental health questions based on suspicion or opinion. It is also unlawful to ask mental health questions during the hiring process, prior to a job offer being made.
“The ADA is one of the most legalistic and complicated of all laws and the stage of employment the employee is at, totally changes ADA compliance requirements,” Fleischer said during a recent training event for Avant Resources learners.
Although you can’t ask about mental illness before making a job offer, it’s acceptable to require a post-hire medical evaluation if the employer has a policy of evaluating all persons hired for the position.
Drug testing is not considered a medical exam and can be used for pre-offer screening, she said.
She also explained the accommodation requirements for mental health conditions including bipolar disorder, depression, and post-traumatic stress disorder (PTSD) which are considered mental disabilities.
A few examples of when an employer is and is not required to provide reasonable accommodation:
- John has been stealing money from his company and gets caught. He requests ADA protection under claims that he has a compulsive disorder. Can he be disciplined? Yes, he can still be disciplined as he has violated company standards of conduct
- Can you terminate Jim for yelling at his boss and threatening physical harm who later claims he suffers from bipolar disorder and cannot be fired? Yes, you can terminate Jim for violating the company code of conduct. The employee cannot claim protection under the ADA as he has already been fired for improper conduct.
- An independent contractor requests reasonable accommodation for his Irritable Bowel Syndrome. Does the employer have to accept his request even though he is not an employee? A person who an employer might consider an independent contractor, might actually be considered an employee under the law and might be qualified for reasonable accommodation.
Fleischer’s full training is available as video recording with printable handouts and qualifies for 1.25 hours SHRM continuing education: