Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Dear Littler: One of our employees told a coworker that she is very depressed and contemplating suicide. The coworker feels this is a serious, and potentially imminent, situation and immediately reported her concerns to us. What should we do to help our employee get the help she needs, and ensure we are meeting any duties we might have as her employer?
— Scared in Syracuse
Hearing that one of your employees may be considering suicide is a terrible revelation, so it is understandable that you want to respond promptly. Employers are put in a difficult spot, as they are concerned about the health and wellbeing of their employees, but must also respect an employee's privacy. While you may be tempted to offer comforting words to your employee during such trying times, it is important to avoid potentially asking unlawful medical questions of your employee. As highlighted below, many employers have obligations under federal antidiscrimination and leave laws that may affect their response.1
The Americans with Disabilities Act (ADA) casts a wide net with its definition of disability.2 Mental health conditions that may lead a person towards suicidal thoughts or tendencies, such as severe depression, are often considered disabilities under the ADA.3 It is generally advisable to avoid asking your employee directly if she is having suicidal thoughts or if she has a mental illness, as that would be an unlawful medical question under the ADA.4 There are a few important exceptions to this rule; if there is objective evidence that this employee could not perform her job, then you may ask about her mental condition.5 For an example of acceptable objective evidence, imagine a crane operator at a construction site who becomes light-headed and has to sit down. If the operator's supervisor approaches and asks if the operator is feeling okay, and the operator says he has been getting light-headed and has been unable to catch his breath multiple times in the past few months, that would be objective evidence that the operator is potentially unable to perform the duties of their job.6 Without such an exception, asking about your employee’s mental health is presumably unlawful.
Even if you cannot directly talk to your employee about her mental health, there are things you can do to assist your employee in light of this seemingly imminent danger. The first step is to reach out to the employee’s emergency contact, if she has provided one, and urge the emergency contact to take the employee to get help. If the employee has no emergency contact, you can call the police. Police units often have officers trained to evaluate when a person is at risk of harming themselves or others, and they may take your employee to a hospital if they determine that the employee is at risk. In short, your initial response should be geared toward ensuring the employee’s basic safety. Depending on the circumstances, it may also be permissible to require the employee to undergo a fitness for duty examination conducted by a doctor hired by your company. Such a decision would arise where there is a concern and objective evidence that an employee may pose a direct threat to themselves or others. Before utilizing this option, it is important to work with legal counsel.
After the employee is evaluated by mental health professionals, it might be necessary to place the employee on leave. A leave of absence should be considered and would give the employee time to get any appropriate treatment and seek any longer-term help needed. If your employer has 50 or more employees (over 20 or more workweeks in the current or previous calendar year), it is a covered employer under the Family and Medical Leave Act (FMLA). As a result, your employer likely is required to offer this employee leave, assuming her condition qualifies as a “serious health condition” under the FMLA.7 During that leave period, you must maintain the employee’s benefits at the same level she would be receiving those benefits if she was not on leave.8 When the employee eventually returns from leave—hopefully in a better mental space than when she left—you will have to return her to her same position or a position comparable to the one she held before she took FMLA leave.
Upon the employee’s return, she might need accommodations related to a disability to do the job. The ADA requires that your employer engage in an “interactive process” with the employee, taking into account the advice of the employee’s medical professional to determine if she can still perform the essential elements of the job, with or without accommodation.9 Your employer may consider requesting a letter of confirmation from your employee’s psychologist (or other treating professional) that she can perform her work.10 If the interactive process demonstrates that the employee needs a reasonable accommodation to perform her job, and you are able to identify an accommodation that does not pose an undue hardship on your employer,11 you must provide that accommodation.12 Such accommodations may include, for example, job restructuring, modified work schedules, or reassignment to a vacant position.13
Evaluating what to do as an employer when you discover an employee has suicidal ideation can be emotionally taxing on you, and equally taxing on those coworkers in whom the employee confided. You should check on the coworker who was told by the employee about the employee’s suicidal thoughts. Avoid telling the coworker anything about the employee's medical condition, as doing so could violate both the ADA and FMLA confidentiality requirements.14
It would be appropriate to remind the coworker, and all employees, about any Employee Assistance Programs (EAPs), or other counseling programs, offered by your company. I hope that these suggestions help you work through what you can do during this difficult time to assist your employee and comply with relevant legal obligations.
1 This article will address basic federal requirements relevant to this scenario, but employers also should be aware of and comply with any applicable state and local laws.
2 42 U.S.C. § 12101 (1).
3 Peters v. Baldwin Union Free Sch. Dist., 320 F.3d 162, 168 (2d Cir. 2003) (“A mental illness that impels one to suicide can be viewed as a paradigmatic instance of inability to care for oneself” and is therefore a “protected disability.”); see also Chandler v. Specialty Tires of Am., Inc., 134 F. App’x 921, 926 (6th Cir. 2005) (a reasonable jury could find that an employer perceived employee who attempted suicide as suffering from an impairment that limited one or more major life functions).
4 42 U.S.C. § 121112(d)(2)(A).
5 Equal Employment Opportunity Comm’n, Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.
6 This example is paraphrased from EEOC Guidance on the ADA. Equal Employment Opportunity Comm’n, Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA).
7 U.S. Dep’t of Labor Wage and Hour Div., The Employer’s Guide to The Family and Medical Leave Act. To qualify for FMLA leave, the employee must have been employed for 12 months, worked 1,250 hours in the past 12 months, and must work at a location with at least 50 employees within 75 miles of the worksite. Id.
9 See Equal Employment Opportunity Comm’n, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Oct. 17, 2002).
10 According to a federal appeals court, a letter from a medical professional that merely expresses conclusory remarks or a “hope” that an employee will be able to perform their job duties is insufficient to serve as evidence that the employee will be able to do so. Stern v. St. Anthony's Health Ctr., 788 F.3d 276, 289 (7th Cir. 2015).
11 A review of four factors will determine if an accommodation is reasonable. These factors include the nature and cost of accommodation, the financial resources of the employer, the number of persons employed at the facility, and the type of operation of the business, among other subjects. 42 U.S.C. § 12111(10)(B).
12 42 U.S.C. § 12112(b)(5).
13 42 U.S.C. § 12111(9)(B). If, however, the employee cannot perform the duties of her current job or any vacant position, even with accommodation, you may terminate the employee. U.S. Dep’t of Labor, Employers and the ADA: Myths and Facts.
14 42 U.S.C. § 12112(4)(B)-(C); 29 C.F.R. § 825.500.