Part 2: Mental Health Disabilities in Employment

In our last segment on mental health disabilities in the workplace, we discussed certain pre-employment considerations when it comes to potential employees and their mental health. Here, we discuss what employers may do after they have hired an employee. The federal law that applies is the Americans with Disabilities Act (ADA), the main source of law for disability discrimination litigation.

Mental Health Screenings of Current Employees

Employees who struggle with mental health may be considered “disabled” under the ADA when their diagnosis “substantially limits one or more major life activities of such individual.”¹ The definition of disability is construed broadly to ensure equality of opportunity. This does not, however, bar an employer from performing certain screening procedures.

In the ADA context, medical examinations are allowable when they are “job-related and consistent with business necessity.” While this test was originally construed rather narrowly, courts in recent years have been broadening its interpretation to provide employers with sufficient protections. For instance, employers are not required to accommodate an employee with a disability if that disability places other employees at risk or places the employer at risk of a negligence lawsuit. Thus, if an employee has exhibited signs of instability, or if the employer has received complaints regarding behavior, the employer may be entitled to require a screening to determine whether the employee is “fit for duty.”

A real-life example is the case of Painter v. Illinois Department of Transportation.² There, the Illinois Department of Transportation (IDOT) received several complaints regarding an employee’s behavior. This employee displayed several concerning behaviors, including an incident in which police were called after she sent an email to her Union representative stating that “something” was “dead.” In that case, the court sided with the employer, holding that IDOT could require a mental-health, fitness–for–duty examination. Part of the court’s reasoning had to do with the potential for liability that IDOT faced if it did not perform some kind of wellness check to address employee complaints.

In another case, Leibas v. Dart,³ the court came to the opposite conclusion. There, a small group of employees had been with their employer for several years and had successfully performed in their respective roles throughout that time. Nearly ten years into employment, several employees were informed for the first time that they were “unable to perform the essential functions of the job”⁴ after taking a performance test at their employer’s behest. When the various employees requested accommodation, they were denied and then relegated to lower-paying positions. The court concluded that the employers had engaged in a “fishing expedition” to dismiss employees based on the employees’ disabilities. Specifically, the defendant-employer was found to have “no genuine concern” that at least one employee’s behavior was “adversely impacting her ability to perform her job.”⁵

Takeaways and Best Practices

Employers can take proactive steps to ensure compliance with the ADA, such as:

1. Provide training for employees on ADA and disability sensitivity;
2. Clarify that all employees who need an accommodation should consult HR;
3. Implement a specific, step–by–step procedure for providing an accommodation, including an interactive process to work with the employee on an acceptable accommodation;
4. Document every step in the process; and
5. Should an employee present with concerning behavior, and especially if other employees have complained of the behavior, partner with a medical/psychological professional who can perform a fitness-for-duty examination suitable for your business.

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¹ 42 U.S.C. § 12101(1)(A).

² Painter v. Illinois Department of Transportation, 715 Fed. Appx. 538, 539 (7th Cir. 2017).

³ 2020 WL 6134992 (U.S.D.C. N.D. Illinois).

⁴ Id. § 12102(d)(4)(A) (“The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act.”).

⁵ Leibas v. Dart, 2020 WL 6134992 at *6.

Featured Image by Rebecca Sidebotham.