Disabilities of all types pose challenges for employers and employees alike. As employers struggle to find ways to help employees with disabilities do their jobs, they also must fulfill obligations created by laws designed to prevent discrimination and violate privacy. Like other disabilities, bipolar disorder presents its own unique challenges—concerns that will be explored in a Business and Legal Resources webinar set for July 28 titled “Employees with Bipolar Disorder: HR’s Roadmap for ADA Accommodations and Practical Issues.” 
Bipolar disorder, also called manic-depressive disorder, causes people to experience varying highs and lows as well as changes in mood, energy, and activity levels. A bipolar employee may be wildly creative and productive sometimes and disruptive and nonproductive at other times, meaning employers see great strengths and frustrating weaknesses all wrapped up in the same employee.
ADA, FMLA concerns
The challenges bipolar disorder presents require an understanding of various laws, particularly the Americans with Disabilities Act (ADA). Bipolar disorder is undeniably a disability under the amended ADA, according to Susan Fentin, an attorney with Skoler, Abbott & Presser, P.C. in Springfield, Massachusetts, and one of the webinar presenters. So employers on notice that an employee suffers from the condition need to guard against discrimination and harassment based on the disability, and they must keep the employee’s condition confidential.
An employer may want to discipline an employee causing problems, but care must be taken to avoid discrimination based on the employee’s disability. Fentin says individuals suffering from bipolar disorder may claim that they are being harassed based on disability if they are being held to unreasonably high standards that don’t apply to others in the same job category. “And, of course, if an employee asks for an accommodation and later is disciplined or terminated, there’s the possibility of a retaliation claim,” she says.
Another potential legal hazard employers must watch for relates to the Family and Medical Leave Act (FMLA). Employers covered by the FMLA must take care to follow the steps necessary to determine whether an employee is eligible for leave and then get the proper certification to lessen the likelihood of litigation.
What to do and not do
Employers need to understand that employees with bipolar disorder may not be forthcoming with their diagnosis out of fear of discrimination, and that presents employers with a double-edged sword, Fentin says.
“Employers should not inquire about an employee’s mental state even if that employee is displaying behavior that might signal bipolar disorder or other mental condition,” Fentin says. “There are significant risks in doing so even if the inquiry is well-intentioned, because of the possibility that that inquiry could set up a charge of perceived disability discrimination.”
If an employee exhibits problematic behavior, the employer should be focusing exclusively on the job-related concerns, Fentin says. If the employee discloses a diagnosis of bipolar disorder, the employer should follow its normal ADA protocol.
“In most jurisdictions, an employer is not required to tolerate workplace misconduct that it would not tolerate from a nondisabled worker even if that behavior is caused by the employee’s disability,” Fentin says. “However, that is not always true.” She suggests consulting experienced labor and employment counsel to be sure that adverse employment actions against an employee because of disability-related behavior is legal under state law. “If it is permissible, then the employer can hold the disabled employee to the same behavioral standards as it would other employees.”
Accommodations for bipolar disorder
Employees with bipolar disorder can overcome many workplace problems through accommodations. The ADA requires employers to sit down with an employee with a disability to discuss if accommodations are necessary to enable the employee to perform the essential functions of the job.
What are some accommodations many employers and employees find helpful? Fentin says flex time, regular time off for treatment, leave of absence of definite duration to allow an employee to stabilize medication, transfer to another vacant position that might more easily accommodate an employee’s disabling conditions, work from home, regular breaks, maximum privacy and distraction-free workplace, windows, natural lighting, and service animals have been used effectively.
The ADA does not require employers to accommodate an employee to the point of undue hardship. Fentin says employers can always consider the impact of the employee’s behavior and performance on business operations. Since bipolar individuals may display symptoms in a variety of behaviors, it’s difficult to come up with a standard way to show undue hardship.
“Basically, the employer needs to consider what type of accommodation is requested and what the impact would be on their business,” Fentin says. “If, for example, the employee is having difficulty turning in work on time during a flare-up, the ability of the employer to give some latitude in those deadlines will depend on whether there are other employees who can pick up the slack and whether the late work product has a negative effect on customer relations or production.”
It’s possible that an employee’s condition can make continued employment an undue hardship. “If the employee’s condition results in a direct threat – significant risk of substantial harm to self or others – continued employment might be an undue hardship,” Fentin says. “But employers should be careful not to assume that any mental disorder would disqualify an employee from a particular job.”
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