Dear Atty: When it’s More then Just a Disruptive Employee.

Dear Atty:

We have an employee who has been working for us for about five months as an administrative assistant. Recently she has become disruptive in meetings and disturbing her coworkers at their desks for unexplained reasons. In addition, she has been very disrespectful to her supervisor and has been late getting her work completed. Last month I called her in to give her a formal warning about her behavior. We talked things over and she agreed that she would work on her behavior and time management. She also disclosed that she has some mental health issues and would work on getting her medication under control. She improved for a few days but her behavior is becoming more and more erratic. I would like to fire her as her behavior is really affecting the entire office. Not knowing her diagnosis, I am worried if there are any legal ramifications for firing someone with a mental disability.



Dear Puzzled:

This is a tricky situation because there is no clear-cut answer. Individuals with mental disabilities can be covered by both the Americans With Disabilities Act (ADA) and the Wisconsin Fair Employment Act (WFEA); both laws make it illegal to discriminate against individuals with mental disabilities. While the two laws agree on that point, they disagree on how to handle workplace performance issues that may be caused by mental disabilities.

The Law: The ADA is enforced by the Equal Employment Opportunity Commission (EEOC). According to the EEOC, an employer can hold an employee to the same performance standards as other employees regardless of whether the employee’s performance is adversely affected by their mental disability. The WFEA, however, takes the opposite approach. Under the WFEA, if an employee’s poor performance is due, in part, to their mental disability, disciplining that employee for poor performance is seen as discipline “because of” the disability, i.e., it would be illegal to impose the discipline.

When two laws conflict your safest bet is to follow the one that is more favorable to the employee. In this case, that would mean not disciplining or firing the employee in question – – at least not yet.

As you probably know, under the ADA and WFEA an employer has an obligation to provide reasonable accommodations to an employee with a disability. Cases that have interpreted the WFEA have found that providing the disabled employee with “clemency and forbearance” from the employer’s performance standards is a form of reasonable accommodation. An employer, however, does not need to suspend its performance expectations indefinitely.

At this point you are probably saying to yourself, “that’s all fine and good, but what should I actually
do?” To answer that, lets focus on a couple of points that you raised in your initial question.

First, you said that your employee was working on getting her medication under control. You then mentioned that her poor behavior started up again a “few days later.” A few days typically is not enough time to allow changes in medication to have their desired effect. You need to give your employee more time to try to get her condition under control through changes in her medication.

The next question you probably are asking yourself is, “well, how much time do I need to give her?” The answer to that question brings up a second point that you raised in your initial question. You stated that you do not know her diagnosis. Most employers don’t know that when they are in the process of trying to develop a reasonable accommodation for an employee they have the right to contact the employee’s doctor.  You should contact the employee’s doctor in writing and ask whether a change in medication ever will change your employee’s behavior and if so, how long it will take.

If the doctor answers that no change in behavior ever will occur, you may then be in the position to fire your employee. Again, “clemency and forbearance” from your reasonable performance standards does not need to be given indefinitely. It is very likely, however, that the doctor will respond by saying that the change in medication should control the behavior and will give you some sense of how long it will take or that change to occur. At that point, I think your best course of action is to try to accommodate your employee’s behavior for the time period specified by the doctor for the change in medication to take effect.

I know that this answer was more complicated than you would have liked. But, dealing with mental health issues is no simple matter.