November 1, 2003

Avoiding Lawsuits is a service of the employment law training and consulting firm of Counsel Consulting Group LLC and the law firm of Powell, Trachtman, Logan, Carrle & Lombardo, P.C.

THE NEXT BIG THING: BIPOLAR EMPLOYEES AND THE ADA
The Lawsuits Are Coming. Here’s How to Dodge the Bullet

Our job is to figure out what is likely to go wrong in our clients’ businesses, before it happens. So, with that in mind, we sound the following alarm: one of the next big things in ADA claims against employers will focus on employees afflicted with “bipolar disorder,” often referred to as manic-depressive illness.

Maybe you didn’t buy Microsoft at 1 ¼. Maybe you locked in a mortgage at 9 ¾. It’s still not too late to make a killing – plan now to avoid the bipolar litigation wave, and the money you will save in legal fees and litigation settlements will more than make up for your prior lack of foresight.

A Typical Scenario

Let’s suppose you hire a new office manager, and arrange to meet with her every month to review pending projects. In June, she tells you, with great enthusiasm, that she is renegotiating rates with the medical insurance carrier, instituting a new bid procedure for vendors, installing updated software on all workstations, designing a secretarial training course, and implementing a new employee evaluation procedure. You are amazed at her enthusiasm and resolve, and you ask her how she is going to find the time to accomplish so ambitious an agenda. She assures you she has it all under control and can’t wait to get started.

By July, you note that substantial progress has, in fact, been made. But by August you detect a diminution in her enthusiasm and self confidence, and a substantial slowdown. At the September meeting, she tells you that very little has gotten done over the last two months, she breaks down crying, and offers her resignation. You assure her that she simply bit off more than she could chew, and tell her to stick with it.

At the October meeting she appears with a detailed timeline for completion of all the tasks discussed in June, and she laughs off the July through September period as a “down time” that has strengthened her resolve. In October, although some things have progressed, you see the downturn re-surfacing, and by November, her enthusiasm has waned, and you notice that she is coming in late and leaving early. By December, you receive another offer to resign. You begin to dread the January meeting.

You understandably reach the conclusion that you need more predictability in your key employees and you meet with her. You diplomatically raise the subject of her mood swings and unpredictable behavior. Before you can finish, she blurts out, “I know. I can’t figure out what’s wrong with me. I obviously need some help to get through this. I wouldn’t blame you if you fired me right now.”

So What’s The Problem?

In the pre-ADA world, if an employee was not doing his or her job, an employer could terminate, discipline, demote or otherwise deal with the employee as the employer thought best. In the post-ADA world, however, if the employee’s poor performance is caused by a “disability,” the employer no longer has those freedoms. Instead, as soon as the employer is on notice of the problem and the desire of the employee to get some help, the employer must engage in an interactive dialogue with the employee to determine if the employee can be enabled to perform the “essential functions” of his or her job through a “reasonable accommodation.” If there is a reasonable accommodation that can do the trick, the employer must make that accommodation available to the employee.

But what happens when there is a disconnect between your observations of an employee’s poor job performance, and your recognition that the poor job performance results from an ADA-protected disability? Suppose the “that’s a potential disability” bell simply does not go off in your head?

For instance, you hire an employee who falls asleep on the job. It turns out the employee is on a medication that causes temporary drowsiness, and all he needs is an extra thirty minute break to get through the day. You’re angry, it never occurs to you that there might be an explanation, and you fire him on the spot. Or you have an employee who takes forever to provide the reports you need. It turns out that he has a vision problem, and would be a top performer if provided with a special computer monitor. You’ve got deadlines to meet, you’ve got no time to deal with employees who are holding you back, and he gets passed over for promotion and salary increases.

Can you get hammered under the ADA for not recognizing that what seemed like incompetence was really the product of a “disability”? You better believe you can... big time.

Which takes us back to bipolar disorder…

Unreasonable, Unreliable and Unpredictable? Or Bipolar?

Bipolar disorder is a mental illness that has been recognized and written about for centuries. It involves severe mood swings that result in episodes of intense highs (mania) and extreme lows (depression). The highs and lows can cycle very quickly, or they can spread out over several months, with extended periods of apparent normalcy in between. The symptoms vary by individual and degree, making diagnosis particularly challenging. As a matter of workplace realities, the stigma that generally surrounds mental illness leads many employees to conceal and deny the problem.

It has already begun. Bipolar disorder is recognized as a covered disability under the Americans with Disabilities Act. In 2003, the EEOC prosecuted and settled a claim on behalf an employee with bipolar disorder, noting “[m]entally disabled employees are protected under the ADA just as those who are physically disabled. Disabled employees are entitled to consideration of a reasonable accommodation for their disability.”

So Much for the Problem. What’s the Fix?

Like so much else in the world of preventing employment liabilities, the fix begins with training the managers who deal with the employees. It is unwise, unfair and fiscally irresponsible to leave managers on their own, without the tools they need to minimize the liabilities that bring so many businesses to their knees. They need to be equipped with the knowledge and decision-making skills that are required to make the right choices in difficult circumstances. Here’s how to do it.

The First Step: Understand the Scope of the Problem

Getting managers to be on the alert for bipolar disorder begins with convincing them that it is a real disease (as opposed to a lack of will power or personal discipline), and that it is a significant enough problem to merit their attention. That’s human nature. Presenting the documented facts usually does the trick.

But that is not the full story. The cost of dealing with bipolar disorders far outstrips its statistical prominence. The American Journal of Psychiatry examined insurance claims for bipolar patients in 1996, and reported that one out of 5 bipolar patients had at least one psychiatric admission in 1996, and bipolar patients accounted for over 12% of all behavioral health care expenditures. The medical literature also indicates that approximately 20% of persons with untreated bipolar disorder commit suicide.

A 1991 report from the National Institutes of Mental Health tried to quantify the financial havoc the disorder had caused. The conclusion: starting with the proviso that estimates, even at that time, were much too low, the NIMH concluded that 1991 total costs for bipolar illness were a staggering $45 billion. Of that figure, $17 billion was attributed to lost productivity in the workplace.

The Second Step: Understand the Indications

Managers need to know bipolar disorder when they see it – that is, they need to be equipped with the knowledge that will cause them to think “potential disability,” not “irresponsible employee,” when observing bipolar symptoms. There is no other way to avoid the ADA consequences that will flow from non-recognition.

• Increased energy or restlessness
• Rapid speech and racing thoughts
• Euphoria
• Extreme irritability and distractibility
• Unrealistic belief in super-powers
• Increased sexual drive and provocative behavior
• Aggressive behavior
• Substance abuse, particularly cocaine, alcohol and sleeping pills
• Decreased need for sleep
• Unusually poor judgment

Symptoms of the depression cycle may include periods of:

• Persistent sadness or anxiety
• Hopelessness or pessimism
• Guilt, helplessness
• Loss of interest in ordinary activities and pleasures
• Loss of energy; fatigue
• Chronic pain
• Unexplained weight gain or loss; loss of appetite
• Restlessness or irritability
• Difficulty concentrating or indecisiveness
• Difficulty sleeping
• Thoughts of death or suicide; suicide attempts

The Third Step: Understand the Potential Accommodations

There is no present cure, although there are treatments for bipolar disorder. However, not all persons respond to the treatments in the same way, and there are many jobs that persons with serious bipolar disorders will not be able to perform, no matter how many accommodations you offer. The ADA protects employees who can perform the essential functions of their job if given a reasonable accommodation, and depending on the person and the job, the effort does not always work.

But as important as it is to understand that not every effort will succeed, it is equally important to understand that a great many persons with bipolar disorder will benefit, often dramatically, by one or more accommodations, and in those cases, managers need to be aware of the options. To assist that process, the Office of Disability Employment Policy of the U.S. Department of Labor’s Job Accommodation Network offers guidance on some possible accommodations specifically applicable to employees with bipolar disorders. It’s not easy, and it will take some trial and error:

Maintaining Stamina during the Workday:

• Flexible scheduling
• Allow longer or more frequent breaks
• Provide additional time to learn new responsibilities
• Provide self-paced work load
• Provide backup coverage for when the employee needs to take breaks
• Allow for time off for counseling
• Allow for use of supportive employment and job coaches
• Allow employee to work from home during part of the day or week
• Part time work schedules

Maintaining Concentration:

• Reduce distractions in the work area
• Provide space enclosures or private office
• Allow for use of white noise or environmental sound machines
• Increase natural lighting or provide full spectrum lighting
• Allow the employee to work form home and provide necessary equipment
• Plan for uninterrupted work time
• Allow for frequent breaks
• Divide large assignments into smaller tasks and goals
• Restructure job to include only essential functions

Difficulty Staying Organized and Meeting Deadlines:

• Make daily TO-DO lists and check items off as they are completed
• Use several calendars to mark meetings and deadlines
• Remind employee of important deadlines
• Use electronic organizers
• Divide large assignments into smaller tasks and goals

Working Effectively with Supervisors:

• Provide positive praise and reinforcement
• Provide written job instructions
• Develop written work agreements including the agreed upon accommodations, clear expectations of responsibilities and the consequences of not meeting performance standards
• Allow for open communication to managers and supervisors
• Establish written long term and short term goals
• Develop strategies to deal with problems before they arise
• Develop a procedure to evaluate the effectiveness of the accommodation

Difficulty Handling Stress and Emotions:

• Provide praise and positive reinforcement
• Refer to counseling and employee assistance programs
• Allow telephone calls during work hours to doctors and others for needed support
• Provide sensitivity training to coworkers and supervisors
• Allow the presence of a support animal
• Reinforce peer supports

Attendance Issues:

• Provide flexible leave for health problems
• Provide a self-paced work load and flexible hours
• Allow employee to work from home
• Provide part-time work schedule
• Allow the employee to make up time missed

Issues of Change:

• Recognize that a change in the office environment or of supervisors may be difficult for a person with bipolar disorder.
• Maintain open channels of communications between the employee and the new and old supervisor in order to ensure an effective transition.
• Provide weekly or monthly meetings with the employee to discuss workplace issues and production level

What Now?

The formula for preventing liabilities is almost always the same: figure out the most likely sources of problems; train those in the best position to prevent those problems in the most effective preventive techniques; and institutionalize procedures that make prevention a seamless part of the workplace.

As difficult as that it may be, prevention remains a much easier option than cure.

We do this for a living. Let us know if we can help.

Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.

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