In the Trenches: Reasonable accommodations for mental disability?

Are there any situations under which a company is obliged to make reasonable accommodations for a mental disability to parallel the obligation to accommodate a physical disability? Acme runs into a difficult situation with an employee it dismisses with a mental disability in the latest In the Trenches. Only the names have been changed to protect the innocent.

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Seven years ago, Terry Musalada started out as a part-time assistant receptionist. Within six months, her status was upgraded to full-time assistant to Security Chief Pat Downe.

On the first day in her new job, Pat explained that Terry is the “face of Acme” because of the contact she will have with visitors to the plant and offices. He also told her that she was selected because of how well her personal characteristics and demonstrated job performance matched the written job description for the security assistant position — excellent interpersonal skills, professional appearance, calm demeanor and imposing presence.

In her new role, Terry sat at a desk behind a counter at the center of the back wall of Acme’s large, somewhat ostentatious reception area. As the first person visitors saw when they walked into the lobby, Terry issued and tracked visitor badges, answered questions, and contacted the specific employee a visitor wished to see. And, of course, she and Pat were the first to be called when a terminated employee needed to be escorted out of the building.

Terry was tickled to have gotten this plum assignment because she had been unable to hold such a well-paying job for very long, and she needed the regular income as well as an excellent benefits package. What now pleased her even more was that, after about six years on the security detail, Acme thought she was good at it, as evidenced by her annual pay raises and good performance reviews.

A few months ago, Acme’s insurance carrier announced a substantial premium increase and benefit reduction. Not wishing to pass the problem on to employees, Acme changed carriers. Under the new plan, the employee premium rose slightly and benefits remained fairly constant, but the copay for office visits and prescriptions rose substantially. If employees stay healthy, they won’t have to bear the greater costs.

All went well until the middle of last week, when Terry added several pages to her personal Web site criticizing Acme for its low wage scale, exploitive tactics and crummy medical plan. Then, she brought in a stack of homemade flyers to advertise her Web site. When she handed them to visitors and employees passing through the lobby, she described the site content in a loud and raucous manner. At random times during her shift, Terry used her personal laptop to update her blog when another new idea struck her. She brought in a small radio and sang along with the music, clapped to keep time and danced in place at her position behind the counter.

Pat told her to take her radio and laptop home and never bring them back to work again. Terry replied through e-mail that she wouldn’t comply with such a silly, arbitrary rule. The next day, in fact, Terry spent nearly the entire morning updating her Web site from behind the security desk.

Other employees began complaining to Pat that Terry’s recent embarrassing outrageous behavior appalled coworkers and scared visitors. In response, Pat left his office, walked to the lobby and told Terry that she was expected to attend a meeting in the HR department before her shift started the next day.

The following morning, Terry came to work dressed in a black vampire outfit, complete with a high-collared black cape with red lining, a large, gold medallion hanging from a thin gold chain around her neck, pale makeup, black nail polish and bright red lipstick. She immediately went to her desk and phoned the police, her mother and a lawyer from the ACLU, speaking to each quite loudly. When Pat realized Terry was in the building, he went to the security desk to tell her that he was going to escort her to a meeting in the HR department immediately.

Terry merely called him an evil person, waved him off dismissively and refused to budge from the desk. Pat left and returned with Molly Cottle, the HR director, and two police officers. The cops told Terry that Acme wants her to leave the building immediately and if she didn’t comply, she would be arrested. Terry then walked to the center of the lobby and sat on the floor, staring straight ahead. The police took her into custody on charges of disorderly conduct.

Later that afternoon, Ken Wirth, the union steward, confronted Pat and Molly insistent that Terry not be terminated. The reason was that doing so would show discrimination against a person handicapped by a lifelong case of bipolar disease. He explained that Terry had been able to hide it by carefully controlling the characteristic paranoia, agitation, hyperactivity and irrationality through medication, but with the recent changes in Acme’s medical coverage, she went off her meds because they were now too expensive.

Are there any situations under which a company is obliged to make reasonable accommodations for a mental disability to parallel the obligation to accommodate a physical disability? What measures can a company take to avoid putting someone who is so close to the edge into positions of responsibility? Should pre-employment checking grant a company the right to dig into a person’s medical history? What obligation, if any, did Terry have to inform the company of her medical condition? Since Acme did not make any unreasonable demands or threaten Terry, are they within their rights to dismiss her?

An attorney says:

The Americans with Disabilities Act, as well as state laws that prohibit disability or handicap discrimination, protect employees with mental, as well as physical, disabilities. In all likelihood, Terry’s bipolar condition would qualify her as a protected employee under these Federal and state laws.

While Terry had no obligation to inform Acme of her condition, the burden was on Terry to request an accommodation from Acme if she felt she needed some change in the job duties or physical environment because of her bipolar condition to allow her to perform the job.

On the other side of the coin, Acme had no right to obtain information about Terry’s condition other than inquiring whether she could perform the job with or without accommodation.

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