Mental health crises are sensitive, and employees experiencing them should be treated with empathy and care. They also present employers with the challenge of coordinating workplace safety, disability and leave laws, and any related investigation or misconduct.
If there is an immediate threat of harm, the agency should follow its emergency and workplace-safety protocols. Once the immediate danger has passed, the following principles can guide the agency’s response.
Link to When a Fitness for Duty Examination Is Appropriate When a Fitness for Duty Examination Is Appropriate
When an employee exhibits signs of mental instability or impairment, it may be appropriate for the agency to require the employee to undergo a fitness for duty examination. Under the Americans with Disabilities Act (ADA), an employer may require a medical or psychological examination only when it is job-related and consistent with business necessity. This standard can be met when objective evidence creates a reasonable belief that a medical condition, including a mental health issue, impairs the employee’s performance of essential job functions or causes a direct threat to the employee or others in the workplace.
For example, in Kao v. University of San Francisco (2014) 229 Cal.App.4th 437, the court upheld a fitness for duty examination where a professor frightened coworkers through episodes of rage, clenched fists, and a “wild cackling laugh.”
An agency should not require a fitness for duty examination merely because an employee is difficult, emotional, unconventional, or inefficient. The justification for an examination is often stronger, however, for safety-sensitive positions involving firearms, emergency response, heavy equipment, or driving.
Link to Engage in the Interactive Process Early Engage in the Interactive Process Early
A mental or psychological disorder may qualify as a disability under the ADA or California’s Fair Employment and Housing Act (FEHA), thus triggering the employer’s obligation to engage in the interactive process to identify reasonable accommodations. The agency should offer to begin the interactive process with an employee when it becomes aware of a possible need for accommodation through the employee themselves, a third party, observation, or the employee’s exhaustion of other leave.
Potential accommodations may include modified communication methods, adjustment of nonessential duties, reassignment to a vacant position, or a leave of absence. Reassignment to a different supervisor—even if the existing supervisor allegedly caused or exacerbated the mental health crisis—is generally not a reasonable accommodation. Employers retain authority over personnel assignments and reporting structure, although it may be appropriate to instruct the existing supervisor to change their methods.
Link to Do Not Lose Sight of Workplace Investigations Do Not Lose Sight of Workplace Investigations
It is not uncommon for an employee experiencing a mental health crisis to be on the complaining or receiving end of allegations of harassment, discrimination, retaliation, or other policy violations.
The agency’s obligation to investigate such complaints is not contingent upon the complainant’s mental health status. If an employee’s allegations would violate policy if true, the agency should not dismiss them because it suspects that the employee’s perceptions may be affected by a mental health condition. The agency should follow its normal processes for investigating complaints.
If the complainant is on medical leave, the agency may provide the employee with the option to participate voluntarily in an interview with the investigator, or to hold the investigation in abeyance until the employee returns from leave. The agency may still preserve evidence, interview other witnesses, and take interim safety measures.
If the employee on leave is the subject of the investigation, they may participate voluntarily in an interview while on leave, but the agency cannot compel them to do so. If the subject is a peace officer or firefighter, a delay in the ability to interview the respondent might require an agreement with the employee to toll the Public Safety Officers Procedural Bill of Rights Act (POBR)/Firefighter Bill of Rights Act (FBOR) one-year statute of limitations for discipline.
Link to Pause Before Disciplining Disability Related Conduct Pause Before Disciplining Disability Related Conduct
In Dark v. Curry County (9th Cir. 2006) 451 F.3d 1078, the U.S. Court of Appeals for the Ninth Circuit held that, with limited exceptions, disciplining an employee for conduct resulting from a disability is the functional equivalent of unlawfully disciplining them for their disability. In Dark, the county terminated an equipment operator with epilepsy after he experienced a seizure while driving a county vehicle. The court held that the county was obligated to engage in the interactive process, including considering whether leave or reassignment would mitigate the employee’s symptoms, before proceeding to discipline.
The Dark court recognized two exceptions to this principle: (1) conduct that is the result of illegal drug use and alcoholism, and (2) egregious and criminal conduct.
The practical lesson of the Dark case is to slow down before imposing discipline when an employee’s conduct or performance issues may be disability related. If problems persist after reasonable accommodation efforts—or no effective reasonable accommodation would allow safe performance of essential functions—the agency may be able to proceed with appropriate corrective or disciplinary action.
Link to A Coordinated Response Is the Best Response A Coordinated Response Is the Best Response
Mental health crises rarely fit within a single legal framework. Public agencies should respond with compassion while grounding decisions in objective evidence, careful documentation, and consultation with legal counsel. That approach supports the employee while meeting the agency’s operational and legal responsibilities.