Fisher & Phillips Offers Employers Advice on Addressing Mental Illness in the Workplace

Approximately 833,000 Adults in Texas Suffer from Severe Mental Illness

Limited Options Increases the Importance for Employers To Know Their Rights

Mental illness in the workplace is likely to take center stage this month, as May marks Mental Health Awareness Month. Based on statistics, Texas employers will likely face issues involving mental illness at some point, as an estimated 833,000 adults in the state suffer from severe mental illness, according to a recent National Alliance on Mental Illness study. While employers are limited in what actions may be taken to address an employee’s suspected mental health issues, they do have some rights, according to Dianna D. Bowen, partner in the Dallas office of national management-side labor and employment law firm Fisher & Phillips LLP.

“Texas employers should brush up on how to respond to suspected mental illness in the workplace in order to avoid landing in court, left to face a hard-to-win case after being charged with offenses under the Americans with Disabilities Act (ADA) or a similar state statute,” said Bowen.

According to Bowen, there are only three situations in which employers should directly address issues pertaining to the suspected mental illness of an employee:

1. An employee poses a direct threat to the safety of himself or others. In this situation, so long as the employer has proper evidence as deemed by their attorney, a direct-threat psychiatric exam may be administered to the employee by a trained mental health professional. This exam is structured only to evaluate whether or not an employee is mentally fit to perform the essential job functions and is administered by a mental health professional.  

2. An employee is not performing his essential job functions. In this case, employers may require an employee to take a fit-for-duty test, administered by a trained health professional. This exam only evaluates an employee’s mental health as it pertains to his essential job functions. It does not disclose whether or not an employee is mentally ill.

“In this situation, employers should always have a conversation with the employee and ask what he believes is the reason he has not been able to complete his essential duties,” said Bowen. “It may be that he has recently lost a loved one and the situation is temporary.”

3. An employee occupies a “high-risk” job position and there is a bona fide business reason to require such screenings of all employees. Types of high-risk job positions include pilots, doctors and bus drivers. Employers with high-risk employees may, in accordance with industry regulations and professional licensing standards, hold employees to higher standards and implement additional monitoring and screenings. This may include requiring an employees to disclose mental health issues that would affect the employee’s ability to perform the essential functions of the job upon hiring, implementing regular screenings (such as on an annual basis) for all employees, and administering fit-for-duty tests based on reasonable suspicion.

According to Bowen, seeking input from legal counsel prior to taking action against an employee who may be mentally ill may help employers avoid fighting a losing battle in court. “Monitoring mental health in the workplace can be mind-boggling for employers,” said Bowen. “It is often difficult for them to determine how to address a situation without risking charges under the ADA.  However, in some cases, the risk of a catastrophic event outweighs the risk of a lawsuit.”