Many employers have seen manifestations of mental illnesses in employees in the workplace. California requires employers of five or more employees to provide a reasonable accommodation for individuals with physical and mental disabilities unless
doing so would cause an undue hardship.

California defines mental disabilities to include mental and psychological disorders or conditions, emotional illnesses, and intellectual learning disabilities. Thus, employers may have to reasonably accommodate employees with dyslexia, ADHD, depression, schizophrenia, or any number of other mental illnesses.

Employers must be cautious when dealing with employees who may appear to be mentally ill. Employers cannot ask the employee whether he or she suffers from a type of mental or emotional condition due to the employee’s right to keep their mental
conditions private. Employers may only ask questions about mental health in four situations:

1. When an employee asks for a reasonable accommodation;
2. When the Employer has made a job offer and is asking all applicants for the same medical information;
3. When an Employer is engaging in affirmative action for people with disabilities (e.g., tracking the disability status of an applicant pool in order to assess recruitment and hiring efforts); or,
4. When there is objective evidence that an employee may be unable to do the employee’s job or that the employee may pose a safety risk because of a health condition.

California law also protects employees from discrimination based on a perceived disability. Thus, if the Employer believes an employee has episodic depression and takes an adverse action against the employee (like discipline or termination), the employee may claim discrimination based on a perceived disability. California law requires an Employer to initiate an interactive process with the employee when the Employer is aware of the possible need for an accommodation.

An Employer may discharge, or refuse to hire, someone who poses an actual threat of harm to others due to a mental disability since the employee cannot perform the employee’s essential duties without endangering the health or safety of others
even with a reasonable accommodation.

Thus, an Employer aware of an employee that yells, swears, or threatens coworkers, an Employer may have an excellent basis upon which to terminate the employee.

If an employee’s mental health appears to reasonably impair the employee’s ability to perform the job, the Employer may require a fitness-for-duty examination for the employee, provided the examination is job-related and consistent with the Employer’s business necessity. A fitness for duty evaluation may be useful:

1. When, after the Employer confers with the employee, the employee does not admit to, or otherwise realize, the employee has a problem; or
2. When the Employer believes that the employee’s psychological condition makes the employee a danger to himself or herself, other coworkers, or other members of the public with whom the employee interacts as part of the job.

What should an Employer do if an employee discloses a mental illness or the Employer perceives an employee may have a mental illness?

If an employee discloses a mental illness to the Employer, or the Employer learns about the mental condition, the Employer must keep that knowledge, and any employee medical information received, confidential, although make sure that the HR department is aware of the issue or concern.

Employers should also consider creation of an Employee Assistance Program or a crisis intervention system so the Employer can refer an employee with a perceived or actual mental illness to the program in order to obtain help.

Employers should also include a written policy in the employee handbook that includes accommodations for mental health disabilities. Possible accommodations for employees with mental illnesses include offering more flexible working arrangements, schedules and leave for therapy and other treatment.

If you are an Employer and become aware of an employee with, or perceive that an employee may have, a mental illness, contact your legal counsel to assure your response does not run afoul of the plethora of state and federal laws that apply to
employees who have, or may have, a medical or mental condition.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.