Fisher & Phillips Offers Employers Advice on Addressing Mental Illness in the Workplace

Approximately 833,000 Adults in Texas Suffer from Severe Mental Illness

Limited Options Increases the Importance for Employers to Know Their Rights

Mental illness in the workplace is likely to take center stage the next couple of weeks, as May marks Mental Health Awareness Month. Most Texas employers will likely face issues involving employee mental illness at some point considering that an estimated 833,000 adults in the state suffer from serious mental illness, according to a recent National Alliance on Mental Illness study. While employers are limited in what actions may be taken to address an employee’s suspected mental health issues, they do have some rights, according to Stephen J. Roppolo, regional managing partner in the Houston office of national management-side labor and employment law firm Fisher & Phillips LLP. Employers often must strike a delicate balance between their desire for an orderly and productive work environment and the interests of employees suffering from mental disorders, added Roppolo.

“Texas employers should avoid jumping to conclusions about an employee’s ability to work while suffering from a mental disorder. Assumptions about certain conditions, and a failure to accommodate them reasonably, can lead to violations of the Americans with Disabilities Act (ADA),” said Roppolo.

However, according to Roppolo, employers are not prevented from addressing behavioral problems and rules violations in the workplace just because the cause of those issues may be an employee’s mental condition. Rather, the better approach is to focus on the performance deficiency, whatever the cause, rather than on a suspected underlying mental disorder that the employer assumes is the likely source of the performance issues. 

Certain circumstances involving mental disabilities in the workplace require particularly careful handling:

1. An employee poses a direct threat to the safety of himself or others. In this situation, so long as the employer has sufficient evidence that an employee’s condition may create a circumstance that is actually dangerous, a direct-threat psychiatric exam may be administered to the employee by a trained mental health professional. This exam only evaluates whether or not the administrator believes the employee is a danger to himself or others at that moment in time. According to Roppolo, employers should continue monitoring problematic behavior, even if the results from this test are inconclusive. For certain high-risk job positions, including pilots, doctors and bus drivers, employers may consider more invasive monitoring and screenings. This may include requiring a mental health history upon hiring, implementing regular screenings (such as on an annual basis), and administering fit-for-duty tests based on reasonable suspicion.

2. Prescription medication.  Individuals with disabilities often are required to take medication to address symptoms of a mental or emotional condition.  Automatically barring the use of such mediation in the workplace will violate the ADA. While side effects of medication can sometimes result in behavior that may be addressed as a rules violation, employers should obtain the advice of medical professionals, including the employee’s own doctor, if the employee suggests the reason for the behavior is the medication in question. This is part of the interactive process that the employer must engage in before adverse employment action is considered.

According to Roppolo, seeking input from legal counsel prior to taking action against an employee who may be mentally ill may help employers avoid fighting a losing battle in court. “Monitoring mental health in the workplace can be mind-boggling for employers,” said Roppolo. “It is often difficult for them to determine how to address a situation without risking charges under the ADA.”