The question that causes the greatest concern is whether, under the Americans with Disabilities Act, employers risk liability for firing employees who function poorly or engage in disturbing, disruptive, possibly even threatening, behavior in the workplace. Adding to the anxiety is uncertainly over what kinds of cognitive or psychiatric conditions are covered by the disability discrimination law.
Who Is Mentally Disabled?
The ADA itself does not define mental disability. Enforcing regulations issued by the EEOC describe mental impairments as any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and learning disabilities. However, such conditions must be severe enough to substantially impair one or more of an individual's "major life activities" to constitute a disability.
Cognitive impairments having a physiological basis tend to be the most readily identified and quantified mental disabilities. These would include conditions such as neurological damage, autism, dementia, retardation, and learning disabilities.
Mental illness and other emotional disorders, however, have been dealt with inconsistently by the courts. The majority require employees demonstrate that their conditions truly incapacitate functioning. Moreover, the impairment must be long term. The best approach to take, accordingly, is to assume that any worker who might reasonably be viewed as mentally disabled is covered.
Can Employees Fire Mentally Disabled Workers Who Are Disruptive, Violate Work Rules, or Fail to Meet Work Standards?
One thing is absolutely dear under the ADA: A worker who is mentally disabled cannot be fired because of prejudice or stereotype-based assumptions about how he may function or what he might do. For instance, a company may not discharge someone with autism because fellow workers (or even customers) are made uncomfortable by his inappropriate gesticulation or comments. Nor can a worker with an illness like paranoid-schizophrenia be fired because the employer surmises that any such individual poses a threat to company safety.
Nevertheless, an employer will usually be able to mount a solid defense to an ADA claim where an employee has engaged in consequential infractions of important rules (as opposed to simply breaking protocol) or seriously disrupts the workplace.
On the other hand, the issue of how to treat employees who simply cannot meet work standards is far trickier. If the employee is utterly unable to perform the essential functions of his job or poses a hazard to other workers or third parties, he will be deemed not qualified. Thus a federal court recently dismissed the case of a hospital technician whose mental condition rendered him unable to properly monitor vital medical equipment.
Yet most cases do not involve extreme or dangerous dereliction of duty. If the employee is simply performing below par because of a known disability, the employer will more than likely have a legal obligation to accommodate him.
How Must the Employer Accommodate the Mentally Disabled?
The ADA mandates accommodation of disabled employees, even unqualified ones, if accommodation would enable them to perform the essential functions of their jobs. The problem is that accommodation for people with mental disabilities 'is usually hard to conceptualize. Unlike accommodations for physical impairments -- which may simply require a mechanical solution like making a work station wheelchair accessible -- accommodations that might compensate for the limitations of cognitively and psychologically impaired persons require a greater degree of imagination and employer flexibility.
Employees having difficulty coping with the stress of certain job assignments might be accommodated through job restructuring, partial at-home work time, reassignment, reorganization of work space, or allowance of periodic work breaks. One interesting form of accommodation was noted in a First Circuit.
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