Most employers know that an employee cannot be terminated because of a disability, unless the disabled employee is unable to perform the essential functions of the job with or without reasonable accommodation and without creating a direct threat to the health and safety of other employees. However, a recent court decision has added a new wrinkle which seems counterintuitive to this school of thought. Employers now must exercise even greater caution in addressing the termination of employees with mental health disorders.

Employer Liable For Dismissing Employee With Bipolar Disorder
After a contracts clerk at a dialysis provider suffered an emotional breakdown at work, she was diagnosed with bipolar disorder and informed her employer of that fact. Over the next year, the employee struggled with her disorder insofar as she was irritable and had difficulty changing medications to address the disorder. Because the disorder began to interfere with her work, her supervisors presented her with a written performance improvement plan. In response, the employee angrily thrust the plan, along with several expletives, back at her supervisors. Upon returning to her cubicle, she began throwing and kicking things, an event causing other employees to express concern. Thereafter, she was terminated.

In a lawsuit the employee filed against her former employer for disability discrimination, a federal jury returned a verdict in favor of the employer. However, the appellate court overturned the jury verdict, holding that the employee’s conduct was a part of her disability, and, as such, she could not be terminated for any conduct resulting from her bipolar disorder.

Standard Of Conduct
The most significant aspect of this case is that conduct which would otherwise subject an employee to discipline can now be considered a part of an employee’s disability and, thus, protected. Additionally, the new decision may invite misuse and allow a non-disabled employee to claim that unprofessional conduct or poor job performance is the result of a mental heath disorder when faced with termination. With a multitude of mental health disorders acknowledged by medical science, it can be very difficult for employers, who are not clinical psychologists, to discern what conduct and behavior is consistent with a particular disorder.

Nonetheless, employers can help themselves avoid a situation similar to that addressed in this case by expressly including a professional standard of conduct as an essential job function in every employee’s job description. A written policy requiring professional conduct at all times can create a baseline from which to reasonably accommodate employees with mental health disorders. Moreover, the inability of an employee with a mental health disorder to maintain a professional level of conduct with reasonable accommodation could serve as a legitimate basis for dismissal. While such a policy is not an absolute remedy, it will at least give an employer a defense should an employee with a mental health disorder be disciplined or terminated.

Employee Safety
To complicate matters even further, the employer in this case did not argue that the employee’s conduct was a direct threat to the health and safety of other employees in the workplace. Since the direct threat question was not presented, the question as to whether threatening behavior, even if caused by a disability, is grounds for termination was not answered, leaving employers in a no-win situation. While “zero tolerance” policies against workplace violence are considered the norm, the court’s decision may force employers to soften these policies and evaluate all potentially violent conduct on a case-by-case basis. At the same time, allowing a potentially violent employee to remain on the job could be a violation of federal and state workplace safety laws and may expose employers to liability. Even worse, if an employee with a mental disorder does injure a co-worker, it is hard to imagine anything more detrimental to the morale of the workforce.

Hopefully, the courts and legislatures will clarify the confusion created by the new decision. Until then, employers should consult an attorney if they have concerns about the conduct of an employee who may have a mental health disorder. Furthermore, caution should be exercised when contemplating the termination or discipline of an employee with a suspected mental health disorder.