ADA & Disabilities

ADA: Are All Workers With Mental Illnesses Covered?


The recent spate of workplace violence has employers wondering what the ADA has to say about workers with mental illness. The answer is … it depends.


It’s been a month since the horrific shootings at Virginia Tech and a less-publicized, but equally relevant to employers, hostage situation at NASA’s Johnson Space Center in Houston. In that case, a contract employee shot and killed a NASA manager with whom he reportedly had an employment dispute. He then took his own life. A second hostage escaped unharmed.


Such incidents as these have again raised questions about mental illness in the workplace. How is it defined? What protection do mentally ill employees have against discrimination on the job? And what protection do employers have against those whose illness might result in harm to themselves and to their companies?



Finally, the ADA made understandable! Try BLR’s The Complete Guide to ADA Compliance for 30 days and see what we mean! Click for details.



Mental illness can take many forms, ranging from mild depression to severe, psychosis-driven violence. And it’s often hard to find the line between “personality disorders,” which are usually not considered disabilities to more severe conditions that are covered under the Americans with Disabilities Act (ADA). The ADA, however, tries to find that line.


For a mental illness to be protected under the ADA, it:


1) Must inhibit one or more of the employee’s major life activities, such as eating, sleeping, or performing tasks of personal care; and


2) Must not (with a reasonable accommodation, if needed) prevent the employee from performing the essential functions of his or her job, nor impose an undue hardship on the employer.


The challenge, of course, comes in dealing with actions caused by mental illness that fall between mild disorders and those that may threaten physical harm to the employee or to others.


This issue was recently addressed by attorney Michael R. Brown, a partner with the Boston office of the law firm Seyfarth Shaw, LLP. His thoughts were published in Insight, a publication of the Northeast Human Resources Association, and summarized on BLR’s subscription website, HR.BLR.com.


Brown cited recent cases in which workers who suffered from mental illness took their employers to court for wrongful termination under the ADA.


In the first case, a financial firm employee was demoted for making unseemly comments about a co-worker. Angered by the demotion, he shouted at and threatened his supervisor, leading to a 14-week suspension. When the worker failed to submit documentation of fitness to return to work, he was let go.



If after examining BLR’s The Complete Guide to ADA Compliance, you don’t better understand the law, don’t pay for it. Click to try it free.



In the second case, a museum worker created a website critical of his employer, then passed flyers to co-workers and museum visitors to promote it. He was forced to go on short-term disability, then he was fired when it ended.


Both workers opposed their termination based on ADA protections. Their illnesses were the reason for their acts, they maintained. The courts, however, ruled that their conduct was egregious and that their disability offered them no special protection that nondisabled workers didn’t have. If any other worker would have been disciplined for such acts, so could they be.


What about reasonable accommodation for workers capable of such acts? Brown had a simple answer. “Behavior that puts the company or other employees at risk cannot be accommodated.”



Workplace Violence … and the ADA
Does ADA require you to keep on your payroll everyone with mental illness, including those who might become violent? Recent events make this a critical question. Get the answers in BLR’s The Complete Guide to ADA Compliance. Click here to try it at no cost for 30 days.



Print
  • Vivavoce

    These two reported cases dovetail very precisely with the reasoning in an April criminal law decision. There, the defendant sexually assaulted a 5-month pregnant woman, stabbed her more than 30 times, then slit her throat, resulting in her and her fetus’ death. The defendant told the Court that he wanted to be executed for his crime, that what he did was wrong and he should be punished.

    Defendant was found guilty and sentenced to death. The judge reasoned that in spite of the fact that defendant was diagnosed with paranoid schizophrenia, he still had the ability to discern that his actions were wrongful yet committed them anyway.

    The defendant was captured after he, three weeks after the assault on the previous victim, committed a similar crime not too far from the first.

    These cases do not bother me that we deny a person with a penchant for violence an opportunity to visit their illness on those who come into the workplace, be they employees or clients or vendors. The costs and liabilities are far too high to attempt to cater to the disability and have everyone walking on eggshells lest this be the day that the explosion occurs.

    But what does bother me is not having anything more substantial than believing the person is a timebomb and therefore denying employment. Without any corroborating, substantiating and reliable information, there’s too much whimsy for the decision to stand up under scrutiny, even with these three cases as foundation. In the cases before us, there were acts that supported the decisions to terminate. Without evidence of past propensities, there is little basis to not hire.

  • Dear DJ

    The other half of the coin becomes: “what can you do to protect yourself from the boss, who is exhibiting signs of mental illness; but, is cleverly hiding it from witnesses; then, herself, is being protected by her bosses”? This catch 22 situation is one where the boss has displayed a propensity for racial discrimination on numerous occasions; in which the County Municipality that she works for has been sued, lost in court trial, and has settled out of court behind this woman’s behavior. She has been rumored to have been intimately involved with one of the Board Members who hired and supervises her; so, each time a charge against her arises, the Board conveniently get her off the hook. But, the strange thing about it is that she does not seem to learn any lessons from any of it, nor are her bosses seeming to do anything to reprimand or remove her. She thus, obviously getting some sort of rush from repeating it over and over, hires a new victim of circumstance and exhibits the same behavior toward them. Groups of employees have gathered and met with her bosses, protested, etc but to no avail. I am one of the former victims, but have learned since leaving that she is still up to her same old antics, and does not seem to care who thinks what about it. And, the County Board obviously does not mind continuously doling out new settlement money as a result. This to me is insane-not to mention the fact that “Federal” Laws are continuously being violated by a government municipality without consequence. So, not only are employees unsafe from mentally unstable co-workers, but unstable supervisors as well. The mental illness issue need to be investigated more thoroughly so that proper employment laws can be established, passed and implemented in the workplace to protect employees from anyone who is capable of displaying and carrying out signs of mental instability. Though I realize that there are HIPPA laws protecting patients’ rights against public release of their medical records; however, I believe that some sort of law should also be established to allow or even mandate mental health specialists to notify companies (or other affiliations) of patients of any possible threats or dangers that certain patients may or could possibly cause without frightening the Administrative personnel yet also without prompting discrimination on the part of the Administrative personnel. It really is “catch 22”; but, in today’s society, more necessary than not. There are many undiagnosed and diagnosed patients interacting daily with people (without the knowledge of those being interacted with). This is because too many of us are attempting to wear blinders to the fact that, though not contagious, the illness is much more existent and pandemic than we are willing to accept.

  • Dear DJ

    Further, this particular “boss” also happens to be “Human Resources Director”. Following the aforementioned Discrimination case being settled, everyone cited for their inappropriate behavior (racism, harassment, hostility, etc) were promoted rather than reprimanded.