Seyfarth Synopsis: Sometimes even the best employees can have their woebegone days. How is an employer to distinguish between (1) a mental disability that may require accommodation and (2) a case of someone “having the Mondays”? In honor of Mental Health Awareness Month, we offer some therapeutic antidotes for your queries on tackling mental illnesses at work.

In the television show Unbreakable Kimmy Schmidt, Kimmy’s therapist, Andrea (played by Tina Fey) has two personalities: Day Andrea, who solves problems calmly and hands out helpful advice; and Night Andrea, who is sloppy, irresponsible, and has unexpected (often drunken) outbursts.

While you may not have encountered “Night Andrea” at work, you may have seen other manifestations of mental illnesses in the workplace. Unlike physical disabilities, mental disabilities are often invisible, and surrounded by a maze of complicated privacy laws, making them harder to detect and address. To help ameliorate your concerns, we prescribe the following considerations for your next mental health quagmire at work.

California Psych 101: What Is A Mental Disability?

The first step in getting help is knowing with what kind of beast you’re dealing. As Dr. Phil wisely says, “don’t wait until you’re in a crisis to come up with a crisis plan.” California requires employers of five or more employees to provide a reasonable accommodation for individuals with physical and mental disabilities unless doing so would cause an undue hardship. California defines mental disabilities—far more broadly than under federal law—as including mental and psychological disorders or conditions, emotional illnesses, and even intellectual learning disabilities. So if your employee has dyslexia, ADHD, depression, or schizophrenia, you may have a duty to reasonably accommodate them.

Can I Ask My Employee If He Has The Blues?

While it may be tempting to “play therapist” and ask whether your employee suffers from a type of mental or emotional condition, you need to proceed with caution. An Equal Employment and Opportunity Commission (“EEOC”) guide provides that employees are entitled to keep their mental conditions private. In fact, employers can ask questions about mental health in only four situations:

          i. When an employee asks for a reasonable accommodation;

          ii. When you have made a job offer and are asking all applicants for the same medical information;

         iii. When you are engaging in affirmative action for people with disabilities (like tracking the disability status of an applicant pool in order to assess recruitment and hiring efforts); or,

         iv. When there is objective evidence that an employee may be unable to do the employee’s job or that the employee may pose a safety risk because of a health condition.

Employers also need to know that California law protects employees from discrimination based on perceived disability. So even if your employee doesn’t tell you about a disability, but you think the employee had a depressive episode, and you then take an adverse action against the employee (like discipline or termination), the employee may claim discrimination on the basis of a perceived disability. Moreover, California law requires you to initiate the interactive process when you are aware of the possible need for an accommodation.

What If My Employee Threatens To Put Me On Her Hit List?

Several courts have found that an employer may discharge, or refuse to hire, someone who poses an actual threat of harm to others due to a mental disability. The reasoning is that the employee cannot perform the employee’s essential duties without endangering the health or safety of others even with a reasonable accommodation. So if your employee yells, swears, or threatens to put her coworkers on her “Kill Bill” list (as this employee with bipolar disorder actually did), you may have an excellent basis to let the employee go.

What To Do If Your Employee Seems Unfit For The Gig

If an employee’s mental condition is one that appears to reasonably impair the employee’s ability to perform the job, you may consider requiring a fitness-for-duty examination for the employee, provided the exam is job-related and consistent with business necessity. A fitness for duty evaluation may prove a useful tool in the following cases:

• When, after conferring with your employee, the employee does not admit to, or otherwise realize, the employee has a problem; or
• When you believe that an employee’s psychological condition makes the employee a danger to himself or herself, other coworkers, or other members of the public with whom the employee interacts as part of the job.

Workplace Solutions

It is never too early to come up with a targeted plan to address employee mental health concerns at the workplace. Here are some suggestions.

• If an employee discloses a mental health illness to you, or you learn about the mental condition, keep that knowledge, and any medical information you receive, confidential. [Note: if you are not a member of your human resource group, you should share the information with a member of that department.]
• Consider setting up an Employee Assistance Program or a crisis intervention system. If you have one, refer an employee in distress to the program so that the employee can seek help.
• Develop a written policy in your handbook that includes accommodations for mental disabilities.
• Be mindful of possible accommodations for employees with mental illnesses, such as offering more flexible working arrangements and schedules, and leave for therapy and other treatment.