When to Appropriately Fire an Employee with Mental Health Challenges

Stop and think before firing an employee

Most organizations strive to be equal opportunity employers and with the help of various EEO compliance measures and diversity awareness campaigns, many employers now see the proven attributes and benefits of hiring returning veterans and other people with physical and mental health disabilities. Generally speaking, most people with physical and mental challenges do a great job and make great employees. The question many employers have is -- how do you know when and where to you draw the line regarding issues such as: consistent poor performance, accommodations, workplace safety, disruptive behavior, reprimands, right-to-work states and terminating someone with certain mental health challenges? We must first understand the law and employer compliance measures regarding these issues.

Are people with physical and/or mental health challenges required to disclose?

The answer to this question is no. An employee only needs to disclose their particular disability(s) or health status if they need an accommodation. This is usually done during the interview process. Workplace accommodations must be applied for prospective employees during the application process as well. Also during that time, an employer has the right to ask if the employee has any physical or mental health challenges that would inhibit their ability to perform certain task essential to the job description. For example, would the employee be able to lift a certain amount of weight associated with the job? The challenge for many prospective organization employees, is overcoming the personal fear one may have towards disclosing their physical and/or mental health status in a social environment that may be plagued with negative pre-judgment, possible discrimination and toxic stigma.

Reasonable Accommodations and Corporate Policy

Also during the interview and on-boarding process, an employer has the right to extend corporate policy notification regarding acceptable employee conduct within the workplace. These employer policies can hold the employee accountable to standards regarding workplace conduct and job performance. In addition, an employer can extend discipline to any employee (regardless of their particular health status) that violates certain corporate policy regarding conduct, or failure to meet certain performance standards.

If the challenges are disability related or influenced by the disability in any way, the employer is obligated to consider and apply a reasonable accommodation to improve the situation (that helps the individual meet the required performance standard.) An employer must make an accommodation available if it would not impose undue hardship on the employer’s business.

Reasonable accommodations may include, but are not limited to:

  • Making existing facilities readily accessible to and usable by persons with disabilities.
  • Job restructuring and modifying work schedules
  • Acquiring or modifying equipment, adjusting examinations, training materials or policies and providing qualified readers or interpreters

The caveat is, the employer must also extend the same opportunities for all other employees with similar concerns. This also includes extending the same discipline (for policy violations) of all others as well.

ADA Policy regarding people with disabilities

Certain conditions such as post-traumatic disorder (PTSD), Turret's syndrome, anxiety, depression, schizophrenia, bi-polar disease and traumatic brain injury are just some of the various physical and hidden disabilities that can have a significant impact on social behavior, mood, job performance and effectively navigating certain workplace facilities.

On March 15, 2011, amendments to the 2008 Americans with Disability Act (“ADA”) became effective. The 2011 ADA rules represented the first changes in 20 years of the adopted legislation. These changes which had been redesigned to be more 'user-friendly' for building code officials, builders, and architects, had also been adjusted with certain state and local accessibility codes. The new standards made certain facilities more accessible for people with disabilities and applied to the making of swimming pools, parks, golf courses, boating facilities, exercise clubs, and other recreation facilities. The new ADA 2010 Standards, also introduced new or expanded provisions on general nondiscrimination policies, including the use of service animals, the use of wheelchairs and other power-driven mobility devices, selling tickets for wheelchair-accessible seating at sports and performance venues, reserving and guaranteeing accessible rooms at hotels, providing interpreter services through video conferencing, and the effects of the regulations on existing facilities. The rules were signed by US Attorney General Eric Holder on July 23, 2010, and the official text was published in the Federal Register on September 15, 2010.

All people with disabilities deserve proper public access and the right to work and support their families. If a person is qualified for a job, their disability should not inhibit an individual’s opportunity to work or make them vulnerable to undue reprimand or termination.

While previous laws protected people from discrimination based on sex, race, national origin and color -- the ADA was the first to regulate policy for people with disabilities in the workplace. The ADA prohibits discrimination against qualified individuals with physical or mental conditions in an employment setting. This means that in many situations, the employer has to adjust their workplace environment to allow an employee to properly function and accomplish their specific job task.

Overall, employers must honor all reasonable accommodation request and consider the impact of the workplace environment and facilities towards the person performing the job, along with the impact of possibly exacerbating certain health conditions. Employers with more than 15 employees must adhere to federal ADA standards regarding people with disabilities.

'Right to work' states and firing people with disabilities

Right to work states, prohibit American workers to be forced to join a union. Many unions push companies to agree to contracts that require all workers (whether in the union or not), to pay dues to the union for negotiating with management. State right-to-work laws make these types of contracts illegal. this means that workers in unionized businesses can benefit from the terms of a union contract without paying union dues. (Under federal law, unions must represent all workers covered by a contract, even if some of those workers are not members of the union and do not pay for the union's representation.)

Right to work states such as Arizona and Georgia, must still adhere to the federal Civil Rights Amendment and ADA law under the enforcement of the Attorney General. Specifically, employers in these states are prohibited from failing or refusing to hire or to discharge any individual or from otherwise discriminating against any individual with respect to the individual’s compensation, terms, condition or privileges of employment because of the individual’s race, color, religion, sex, age, disability status or national origin.

It also prohibits an employer from limiting, segregating or classifying employees or prospective employees in any way that deprives any individual from employment opportunities or otherwise adversely affects the individual’s status as an employee because of the individual’s race, color, religion, sex, age, disability status or national origin.

Workplace safety and disruptive behavior

If an employer suspects that a personal physical and/or mental health challenge is responsible for challenges to workplace safety or exhibits disruptive behavior, the employer has the right to have the employee tested or submit to a medical examination. The medical examination must be concentrated towards job-related, 'business necessity' issues. Under the ADA, it is discriminatory to use selection criteria that screen out or tend to screen out individuals with disabilities. This is enacted to ensure that tests do not act as barriers to the employment of persons with disabilities unless the applicant is unable to perform the essential functions of the job, even with a reasonable accommodation.

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Ed Crenshaw is a US Navy veteran, diversity practitioner, disability subject matter expert and creator of the innovative “Preparing Employers to Reintegrate Combat Exposed Veterans with Disabilities” (P.E.R.C.E.V.D.) diversity training program. He is also the author of the books, “The P.E.R.C.E.V.D. Principles” and “The Employers Guide to Understanding Hidden Conditions Related to Suicide.” As a well-renown professional speaker, Ed is a passionate champion and respected advocate for people with disabilities.