It may seem like an easy decision to fire an employee who is disruptive at work, shows up late or not at all, and keeps coworkers on edge all the time. It’s also an easy decision for an employer to go to great lengths to hold on to an employee who is talented, creative, passionate, and productive. So how should employers handle employees who are both troublesome and valuable?
That’s the dilemma posed by some employees with bipolar disorder, a condition characterized by moods that go from extremely good to exceptionally bad. Individuals with bipolar disorder are sometimes disciplinary nightmares. But employers that have an understanding of the condition are in a better position to avoid the problems and take advantage of the strengths such employees bring to the workplace.
Capitalizing on talent
Often bipolar employees are the creative, productive superstars when on a high but disruptive when the mood shifts to low, according to Tom Wootton, a workshop leader and author of The Bipolar Advantage. Maybe they don’t come to work, maybe they’re disruptive in meetings, or maybe they violate company policies — all legal reasons for termination. But they’re also valuable.
“The dilemma is not that they’re hard to fire, but that they’re hard to keep,” Wootton says. “The only way to keep them is to accommodate them.” He doesn’t have a pat set of tips to help employers manage bipolar employees. “You’ve got to be creative for each person,” he says.
But one thing is common among people with bipolar disorder. “You can’t cram a bipolar person into a box,” Wootton says, “because they don’t fit.”
Too often the HR department is looking for a list of best practices to get a bipolar person to conform to the rules and policies of a workplace, Wootton says. But the real solution is figuring out how to accommodate a valuable employee’s needs. “A bipolar employee is either a major asset you’ll accommodate or you should fire them.”
If the bipolar employee is productive in what matters but not productive in what the manager wants, maybe it’s the manager who should make a change, Wootton says. For example, if an employee is a top sales producer but negligent in getting his paperwork done properly, the accommodation may be to have someone else fill in the forms.
Bipolar employees and the law
Legal issues can complicate the situation. The Americans with Disabilities Act (ADA) comes into play since bipolar disorder is listed among the conditions that are presumed to be a disability under the law. Also, the Family and Medical Leave Act (FMLA) is implicated when employees with bipolar disorder need time off to treat or manage their condition. Privacy issues also are a concern since employers are obligated to keep private health information confidential.
Often employers are in the dark about why an otherwise ideal employee becomes a problem, since many bipolar employees go undiagnosed and those who are aware of their condition often don’t disclose it for fear of discrimination.
But if an employee shares the diagnosis and seeks a job accommodation under the ADA, the employer is obligated to engage in the interactive process to determine what can help the employee fulfill a job’s essential functions, according to Susan G. Fentin, a partner with Skoler, Abbott & Presser, P.C. in Springfield, Massachusetts. That doesn’t mean the employer must do whatever the employee asks, but the employer does need to work with the employee to find a solution.
“It’s not reasonable for an employee to say, ‘I can’t do half my job; you need to hire someone else to do the rest,’” Fentin says. But employers do need to be flexible about nonessential functions.
Time off may be a reasonable accommodation. Therefore, Fentin says employers should begin counting leave time under the FMLA as soon as possible because it’s hard for the employer to say leave isn’t a reasonable accommodation.
Before exploring accommodations, employers should make sure the employee is entitled to protection under the ADA.
“It is appropriate for an employer to get documentation from someone who can make the right diagnosis,” Fentin says. Also, the employer should seek guidance from the medical provider on what accommodations are necessary.
Fentin warns employers to be careful about perceived disability claims since the ADA prohibits discrimination against employees who may not have a disability as it’s defined in the law but who are perceived to have a disability by their employer. “You might have an employee exhibiting symptoms . . . but you can’t diagnose and say she must be bipolar,” Fentin says. “Take those conversations out of your vocabulary.”
The passage of the ADA Amendments Act has made more people qualify for protection since it removed the “mitigating measures” feature of the law. Under the old ADA, Fentin says, the condition was looked at while the individual was using mitigating measures. So an employee on medication and having no problems wouldn’t have been considered disabled. Under the new law, however, someone who would be substantially limited in a major life activity when affected by the condition is considered disabled.
“The design of the new ADA and its final regulations is purposely set up to minimize the discussion of whether the person is actually disabled,” Fentin says. The emphasis now is on how to accommodate, not on whether the person is disabled.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR Web and print publications. In addition, she writes for HR Hero Line and Diversity Insight, two of the ezines and blogs found on HRHero.com.