Psychiatric disabilities are considered just as legitimate as physical disabilities under the Americans with Disabilities Act Amendments Act. Here's how HR can best handle these sensitive situations when they arise for workers.
The number of workers who are disclosing that they have psychiatric disabilities is on the rise, and human resource managers must be prepared to understand the legal obligations when hiring them, accommodating for their particular needs and addressing potential performance problems, experts say.
The National Institute of Mental Health in Bethesda, Md., estimates that one in five people will experience a psychiatric disability in their lifetime, and one in four Americans currently knows someone who has a psychiatric disability. In addition, most employers have at least one employee with a psychiatric disability.
Melissa Fleischer, president and founder of¿HR Learning Center in Rye, N.Y., says HR managers should understand their legal obligations regarding such employees under the Americans with Disabilities Act, as well as their state fair-employment laws, which includes providing "reasonable" accommodations for an employee's particular psychiatric disability.
Such accommodations can include an extended leave of absence -- even above the 12-week leave of absence provided under the Family and Medical Leave Act, modifications to the employee's work schedule or modifications to the employer's work policies, Fleischer says. For example, workers may need to work separately from others and away from customers, or have access to water fountains or water bottles when it's time to take their medication.
"HR managers should understand that an employee does not need to use the actual words 'reasonable accommodation' to request one, nor do they have to mention the ADA at all," she says. "They only must put the employer on notice that they have a medical condition and request a change to the employer's policies or practices based on their needs related to that medical condition."
Fleischer is conducting a webinar this month on how to accommodate and reduce employer risk and liability.
"Bottom line, psychiatric disabilities are considered just as legitimate as physical disabilities under the Americans with Disabilities Act Amendments Act," says Corrie Fischel Conway, an employment attorney at Morgan Lewis and Bockius in Washington.
"Human resource representatives need to reinforce that there should be absolutely no tolerance for discrimination against individuals with psychiatric disabilities" Conway says. "If someone has disclosed or you have some suspicion that an applicant or employee might have a psychiatric disability, you still need to evaluate whether the individual is qualified to perform the essential functions of the job, with or without a reasonable accommodation. The focus should always be on qualifications and performance."
Deborah R. Becker, a research associate professor of community and family medicine at the Dartmouth Medical School in¿Lebanon N.H., says HR managers should seek education on the needs of employees with particular psychiatric disabilities through mental-health facilities or programs within their communities. For example, 14 states now work with Johnson & Johnson - Dartmouth Community Mental Health Program to implement "evidenced-based supported-employment" programs.
"These programs work with people with psychiatric disabilities to try to get them back into the workforce so they can move on with their lives," Becker says. "They work with employers to find good matches between what they need and the people they are helping."
If employees start exhibiting erratic behavior on the job and they have not disclosed any psychiatric disabilities, HR managers should refer them to their employee assistance programs, says David Hoff, a senior technical assistance specialist at the Institute for Community Inclusion, a Boston-based nonprofit that advocates on behalf of people with mental and other disabilities.
For employees who have previously disclosed their disabilities and their behavior becomes erratic, it is reasonable for HR managers to ask them about their support systems, Hoff says.
"It's really important for people with chronic mental-health problems to surround themselves with a support system, like those provided by community agencies or employee assistance programs," he says.
If an employee refuses help from an EAP program or outside support and continues to behave against company policy, HR managers should treat it as a performance issue ? just as they would for any other employee, Hoff says.
"If someone does something that is cause for termination -- even if it's caused by their disability, it's not acceptable and they can still be terminated," he says. "The courts and the Equal Opportunity Employment Commission have been very clear on that."