Bipolar disorder as a disability: What are employer’s obligations?

With the ADAAA’s final regulations, new physical and mental impairments are considered disabilities, including impairments related to an employee’s mood and emotional state. Bipolar and other mental disorders are now specifically listed in the statute and in the accompanying regulations. Even if it weren’t listed in the statute as a disability, bipolar disorder would clearly be defined as a disability because it meets the requirements; it significantly limits major life functions and is not considered to be temporary or minor.

Bipolar disorder, also called manic depression or manic-depressive disorder, affects 1 in 20 Americans. Although treatable with medication, it’s considered a lifelong condition. Bipolar employees may exhibit racing thoughts, poor judgment, impulsive behavior, irritability, and many more issues that affect their ability to function at work, which poses a serious disability accommodation problem for employers.

Bipolar disorder: What are an employer’s obligations?

Since bipolar disorder is a disability, the obligations of an employer are the same as they would be for any other disabled employee:

• No discrimination. The employer cannot take the disability into consideration when making employment decisions.
• No harassment. The employer cannot harass the employee, nor tolerate harassment of the employee based on their disability.
• Engage in the interactive process. The interactive process must be used to determine whether there are any reasonable accommodations that might allow the individual to perform the essential functions of their position.

That said, it is important to differentiate between discrimination based on the disability and action taken based on misconduct. While you can’t discriminate based on the existence of a disability, you can factor in the employee’s conduct or performance in employment decisions. Be careful with this, but understand that nondiscrimination does not equal tolerance for misbehavior at all costs.

Bipolar disorder accommodation: What does an employer face?

Finding reasonable accommodations for an employee with bipolar disorder can be a daunting task, but getting to that point is sometimes the toughest part of all. Employees with bipolar disorder are often reluctant to ask for help. This creates stress of nondisclosure if the employee feels the need to try to hide the condition.

“Anyone who has bipolar, because of the stigma wants to hide it. So, they’re going to do everything they can to try to mask all of their symptoms. It makes it very hard to identify.” Tom Wootton told us in a recent CER webinar.

In general, the symptoms of bipolar disorder are hard to identify because they could be attributed to any number of problems, many of which are not considered disabilities. For example, an employee with bipolar disorder may:

• Have increased energy
• Feel agitated, irritable, jumpy, edgy, or wired
• Talk fast and jump from idea to idea
• Be easily distracted
• Be impulsive and exhibit high risk behavior—including things like spending sprees or questionable business investments
• Have difficulty concentrating, remembering things, or making decisions
• Feel sad, pessimistic, or exhausted

While this list is far from comprehensive, it is easy to see how these types of behaviors could be attributed to other problems. Additionally, the symptoms can come and go. Employers are dealing with an employee who has somewhat erratic behavior.

“The irregular nature of that illness results in that inconsistent performance.” Susan G. Fentin told us during the webinar. This means accommodations are frequently going to be more difficult as well. A related issue is that the side effects of medication used to treat bipolar disorder sometimes must also be accommodated. Side effects of some bipolar medications include things like: loss of coordination, excessive thirst, frequent urination, seizures, slurred speech, nausea, and drowsiness. Many other side effects are also possible.

Employers who want to accommodate bipolar disorder as a disability have to look at both the disorder and the side effects from treatment when determining what reasonable accommodations might work.

The above information is excerpted from the webinar “Bipolar Employees: HR’s Legal and Practical Accommodation Roadmap.” To register for a future webinar, visit CER webinars.

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.