Performance and conduct issues can be a source of concern for federal contractors in general, but can trigger even greater concern when employees with mental health impairments are involved. How do contractors address these concerns with their employees? It may be a difficult thing to do even when the contractor is aware of a mental health issue, but what if they are not aware? What if the contractor suspects that a mental health impairment is impacting the employee’s performance or conduct, but is not sure? What is safe to say, what should be left unsaid, and what is the contractor to do? These are all questions that consultants at the Job Accommodation Network, better known as JAN, come up against daily. Let’s take a look at some ideas for addressing both performance and conduct in the workplace, whether a mental health impairment is known to be the cause or not.
First, we are going to look at performance standards. Under Section 503 of the Rehabilitation Act, contractors never have to reduce a production or performance standard for an employee with a disability, but can do so if they choose to. However, contractors are obligated to consider accommodations that could help an employee with a disability meet the production or performance standard.
An important point to stress here is that an accurate assessment of the employee’s performance may, in some cases, alert the employee that his disability is contributing to the problem. This may lead the employee to request a reasonable accommodation to address the problem and improve performance, which can benefit both the employee and the contractor.
If an employee states that his disability is the cause of the performance problem, but does not ask for a specific accommodation, the contractor should enter into the interactive accommodation process, making clear what level of performance is required and asking why the employee believes the disability is affecting performance.
If the employee does not indicate that his disability is the cause of his performance problems, but the contractor believes that it is, the contractor may have a duty to ask whether the employee needs an accommodation as a matter of affirmative action. Under Section 503 regulations, if an employee with a known disability is having significant difficulty performing his or her job and it is reasonable to conclude that the performance problem may be related to the known disability, the contractor shall confidentially notify the employee of the performance problem and inquire whether the problem is related to the employee’s disability. If the employee responds affirmatively, the contractor shall confidentially inquire whether the employee is in need of a reasonable accommodation.
If the contractor does not have a reasonable belief that an employee’s disability is contributing to performance problems, the employer can still ask whether there is anything the employer can do to help overcome the problem. The employer in this case does not need to bring up disability or use the term accommodation.
Just as a contractor does not have to reduce a production or performance standard, the same holds true for conduct standards. A contractor can hold an employee with a disability to the same conduct standards it applies to all other employees. If a disability interferes with an employee’s compliance with a conduct standard, a contractor will need to consider providing accommodations to help the employee meet the conduct standard.
In the Equal Employment Opportunity Commission’s (EEOC) publication called The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities, specific practical guidance is given that is very helpful to employees and employers alike. The same information applies to federal contractors under Section 503.
Employers should discuss problems before they become too serious in order to give the employee an opportunity as soon as possible to address the employer’s concerns. An employee who is on notice about a conduct problem and who believes the disability is contributing to the problem should evaluate whether a reasonable accommodation would be helpful.
Whether rules are written or not, employers should be careful that all conduct rules are applied consistently and should not single out an employee with a disability for harsher treatment.
For additional guidance, see Dealing with Conduct Problems in the Workplace.
Some of the greatest difficulties employees with mental health impairments have that can negatively affect performance and conduct include attending work consistently; sustaining concentration; experiencing fatigue and maintaining stamina; remembering tasks and procedures; staying organized; managing time, stress, and emotions; completing job tasks; and disturbances with sleep.
People with mental health impairments may experience some of the limitations listed here, but seldom will they experience all of the limitations. The degree of limitation will also vary among individuals. Not everyone with a mental health impairment will need accommodations to perform their jobs and many others may only need a few accommodations. There are a variety of accommodations that can be put into place to assist employees in the workplace. The following examples are just a sample of possible job accommodations available. Numerous other accommodation solutions exist.
Example 1: Jude’s employer requests a meeting with him to talk about some recent difficulties with performance. Jude is surprised. He did not realize his performance was as low as what his employer is stating. Jude discloses during the meeting that he has recurrent depression. He states that he is finding it more and more difficult to concentrate and remember tasks. His employer asks him what accommodations he can suggest that would help them work together so Jude can reach his performance goals.
Possible Accommodations: Reducing distractions in the work area by providing space enclosures, sound absorption panels, or a private office may be effective. White noise machines, music players, environmental sound machines or even a fan can help reduce background noise that can be distracting. Uninterrupted “off” work time where an employee can concentrate on work tasks without answering the phone or responding to e-mails can be helpful as well, even in small increments of time. Desk organizers come in a variety of styles and can help reduce clutter. Increase natural lighting or provide full spectrum lighting to improve productivity and alertness. Divide large assignments into smaller tasks and goals and restructure the job to include only essential functions to allow more time and energy to be spent on the completion of those. Memory aids such as schedulers, calendars, email add-ons, or apps can aid in concentration, but make sure the employee knows how to use them.
Example 2: Noelle, a graphic designer with a panic disorder, experiences recurrent panic attacks when traveling during peak traffic times. Her job requires her to drop off design orders and pick up print proofs from a print shop when necessary. After receiving calls from customers who had not received their designs on time, the employer approached Noelle. She told the employer why she had not been able to complete her work tasks and that she had not disclosed before out of fear of losing her job. The employer begins the interactive accommodation process to explore accommodations to help Noelle perform her job.
Possible Accommodations: Referring the employee to counseling and/or an employee assistance program may be helpful and appropriate. So may allowing telephone calls during work hours to doctors and others for needed support, as well as allowing the presence of a support animal.
Allowing a flexible work environment, which may include flexible scheduling, may be needed. For example, Noelle might be given a schedule that allows her the opportunity to drop off and pick up materials when coming to work in the morning instead of at peak traffic times.
In some cases, reassignment may work best for both the employer and the employee.
Example 3: Lexie is a project manager with bipolar disorder who has been written up after several verbal warnings for inappropriate conduct with co-workers. She is placed on a thirty-day improvement plan and warned that if the behavior does not stop within the stated time period, she will be let go. Lexie decides to disclose her disability and ask for accommodations to assist her in responding more appropriately to co-workers.
Possible Accommodations: Since Lexie discloses and asks for accommodations, the employer puts the improvement plan on hold until he receives medical documentation and can put accommodations into place. Her employer did not rescind the discipline that occurred before the disability was known. While her employer can hold her to the same conduct standards he holds others to, he is obligated to provide accommodations to help Lexie meet those standards. Once the accommodations are put into place, the employer starts the improvement plan.
The process should include developing clear expectations of responsibilities and the consequences of not meeting conduct standards and communicating those expectations and consequences to the employee. Consistently scheduled meetings with the employee to set goals and review conduct before problems become too serious can be beneficial. One of the most important accommodations and a crucial part of the accommodation process is to allow for open communication. Establish written long-term and short-term goals so the employee has guidance and can refer back to them.
For a more complete list of accommodation ideas, see Accommodation and Compliance Series: Employees with Mental Health Impairments.