Bipolar: Disability Requiring Accommodation for Work?

If you have an employee who is bipolar, is that considered to be a disability? Must you provide an accommodation for work? In a CER webinar titled “Bipolar Employees: HR’s Legal and Practical Accommodation Roadmap,” Maureen Duffy, Susan G. Fentin, and Tom Wootton outlined some of the potential frustrations of having a bipolar employee, and explained that the ADAAA clearly includes bipolar as a disability. What does this mean for you? How can you provide an accommodation for work for bipolar disability?

Bipolar Disorder in the Workplace

“Unfortunately a huge majority of bipolar people can’t work at all,” Wootton told us during the webinar. There aren’t even accurate statistics regarding bipolar disorder prevalence in workplace, which is at least partially due to the stigma surrounding it, which causes some to hide it. Additionally, many bipolar individuals are still very functional and never end up with a diagnosis.

When you have a bipolar employee, it’s often a tough call whether this is an asset or liability. Inconsistency in performance and behavior is an employer’s greatest frustration. This can result in a situation where your greatest star and biggest problem is wrapped up into the same employee. How can employers handle employees who are both troublesome and valuable? What laws apply?

First and foremost is the ADAAA – the Americans with Disabilities Act Amendment Act. While others apply, this has significant implications. The ADAAA expanded the definition of disability; now bipolar and other mental disorders are specifically listed in the statute and accompanying regulations as disabilities. This means that employers have an obligation to not discriminate nor harass someone with bipolar disorder. Employers are also required to reasonably accommodate that individual, including conducting an interactive dialogue to determine what accommodations might be possible.

Bipolar Disability: What Accommodation for Work can be Made?

When an employer learns of an employee with bipolar disability, what accommodation for work can be made? Must you make any accommodation at all for someone who could become difficult to work with or disruptive? Your first obligation, Fentin advised, “is to engage in the interactive process to determine if there are any reasonable accommodations that will allow the employee to perform the essential functions of his or her job.” That said, remember that the employee need not use any “magic words” to request an accommodation. If the employer had enough information to identify bipolar disability as an issue, then there is an obligation to inquire further and determine what accommodation for work can be made.

There are actually many possible reasonable accommodations that can be made for bipolar disability, including:

• Reduced work schedule/flex time/later starting time
• Regular time off for treatment
• Change in work location
• Transfer to another vacant position for which the employee is qualified and which would more easily accommodate disabling conditions
• Leave of absence for a definite period (if the leave will allow the employee to return to work and perform essential functions of position)
• Maximum privacy and a distraction-free work setting
• Working from home
• Windows, natural lighting, full spectrum artificial lighting
• Regular breaks

However, the accommodation for work must be reasonable. You’re not required to do anything unreasonable, such as:

• Eliminating essential functions
• Tolerating irregular, erratic, or unreliable attendance
• Leave of absence for an indefinite period of time
• Anything that would put so severe an economic hardship on company as to threaten continued viability

When you’re faced with determining reasonable accommodation for work for someone with a bipolar disability, be sure to analyze the details on a case-by-case basis.

Tips for Making Accommodations for Work for Employees with Bipolar Disability

In the webinar, the presenters gave us some tips on making accommodations for work for employees with bipolar disability:

• “Any accommodations that you’re going to offer to the bipolar employee need to be thought through carefully, and should really be developed in collaboration with the bipolar employee,” Fentin advised. You also have to be sure that you’re being consistent in terms of what accommodations you offer and what your expectations are.
• Remember that dual diagnosis is a significant issue. A tendency toward substance abuse exists frequently for bipolar individuals. This is something that an employer needs to be aware of – condoning drinking by allowing it in expense reports is dangerous, for example. You may want to consider adequate controls.
• Disability is not an excuse for misconduct, even if the disability is the reason behind the misconduct. The employee may not be “qualified” if they cannot perform the essential functions.
• Consider whether a leave of absence is reasonable accommodation under the circumstances.
• Always consult with counsel on these issues.

Attorney Susan G. Fentin is a partner in the labor and employment firm of Skoler, Abbot & Presser, P.C. Her practice concentrates on labor and employment counseling, advising large and small employers on their responsibilities and obligations under state and federal employment laws, and representing employers before state and federal agencies and in court.

Tom Wootton is the author of “The Bipolar Advantage,” “The Depression Advantage” and “Bipolar In Order.” (www.bipolaradvantage.com) He has developed a series of workshops dealing with depression and bipolar disorder, and is considered a leading consumer advocate and speaker; he has been giving talks to consumer groups, mental health leaders, and doctors.

Maureen Duffy, Ph.D., is a practicing couples and family therapist, consultant, educator, and author (she is the co-author of two books and has published over 40 book chapters and journal articles). Maureen is the relationship education coordinator for Bipolar Advantage and was a recent keynote speaker for the National Alliance on Mental Illness (NAMI) Pennsylvania Annual Conference.