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When performance or conduct concerns involve an employee with a mental health condition, employers may be unsure what steps they can lawfully take. A mental health condition does not prevent an employer from addressing legitimate workplace concerns, but it may create additional obligations under the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA) and applicable state laws.
Employers generally may hold employees accountable for performance deficiencies and workplace misconduct. Before disciplining or terminating an employee, however, they should carefully evaluate whether the employee’s mental health condition triggers additional legal protections or accommodation obligations.
Yes, employers generally may discipline employees with mental health conditions for legitimate performance deficiencies or workplace misconduct. Before taking disciplinary action, however, employers should determine whether the ADA or another employment law requires additional steps.
A mental health condition alone does not exempt an employee from workplace expectations. However, employers should avoid assumptions about the employee’s abilities and should not take adverse action based solely on a medical condition, diagnosis or disability.
Identifying whether the concern involves poor performance or misconduct can help you determine the right response.
Performance issues generally involve an employee's ability to meet job expectations, such as missed deadlines, declining productivity, frequent errors, poor attendance (when not protected by leave laws), difficulty completing assigned tasks or failure to meet quality standards.
If you know or think that a disability may be involved, the ADA may require you to engage in the interactive process before moving forward with discipline.
Misconduct involves violations of workplace rules or behavioral expectations, and can include threatening coworkers, workplace violence, harassment, theft, falsifying records, and violating safety policies.
Although misconduct may sometimes be connected to a mental health condition, you can generally enforce neutral workplace conduct rules that are job-related, consistent with business necessity, and applied consistently across employees.
RELATED: ADA Accommodations for Mental Health - An Employer Guide >>
Before disciplining an employee with mental health issues, you should take a moment to evaluate whether disability protections may apply.
Consider asking:
If the answer to any of these questions is yes, or even possibly, it's often best to wait before imposing discipline. You'll want to carefully evaluate these situations before making employment decisions. ADA accommodations for mental health don't require you to eliminate essential job functions or excuse ongoing poor performance indefinitely, but they require an individualized assessment before disciplinary action occurs.
One of the most common questions employers ask is: Can you be fired for mental health concerns? Generally, no, an employee can't lawfully be terminated simply because they have a mental health condition or disability. However, termination may still be lawful when legitimate business reasons exist.
Examples include situations where:
Under the Americans with Disabilities Act, undue hardship is more than ordinary inconvenience, administrative difficulty or added expense. It generally means that a specific accommodation would cause significant difficulty or expense based on factors such as its cost, the employer’s financial resources, the size and structure of the business and its effect on operations.
Employers must evaluate undue hardship on a case-by-case basis and consider whether another effective accommodation is available before denying a request.
Every decision should be based on documented facts rather than assumptions about an employee’s diagnosis or future capabilities.
Employers also frequently ask whether an employee may be terminated after returning from protected leave, and the answer depends on the circumstances. FMLA provides eligible employees with protected leave for qualifying serious health conditions, including mental health conditions. Once protected leave ends, however, FMLA protections generally end as well. That doesn't necessarily mean your obligations are over.
The ADA continues to require you to consider reasonable accommodations after FMLA leave expires. In some cases, an additional period of leave may qualify as a reasonable accommodation if it's likely to help the employee return to work in the near future.
However, you aren't required to provide indefinite leave. If, after considering reasonable accommodations, the employee still can't perform the essential functions of the position with or without accommodation, termination may be appropriate.
RELATED: Mental Health Training for Managers - Setting Professional Boundaries >>
Sometimes an employee doesn't disclose a mental health condition until discipline has already begun. This might occur:
When this happens, you should avoid automatically imposing discipline without first determining whether the ADA has been triggered. A disclosure may constitute an accommodation request, even if the employee never uses the words "reasonable accommodation."
Depending on the circumstances, you may need to pause the disciplinary process long enough to determine whether the employee has a covered disability, whether reasonable accommodations are available, and whether the performance concerns may be related to the disability.
That doesn't mean discipline disappears, but only that you should ensure you've satisfied your legal obligations before moving forward.
A recent federal appellate decision illustrates the distinction between disciplining an employee because of a mental health condition and taking action based on documented workplace conduct.
In Shirk v. Trustees of Indiana University, an employee who had requested accommodations and taken leave for obsessive-compulsive disorder and post-traumatic stress disorder was later terminated after sending emails to senior university officials that the court described as insubordinate and unprofessional.
The university’s termination letter characterized the behavior as serious misconduct. In February 2026, the Seventh Circuit concluded that the evidence did not support her claim that she was terminated in retaliation for requesting accommodations or taking protected leave. Instead, the record showed that the university acted because of her documented workplace conduct.
The case does not mean that an employer may automatically discipline any behavior associated with a mental health condition. Employers should still consider whether the employee has requested an accommodation, whether the conduct rule is job-related and consistent with business necessity, and whether the rule and resulting discipline are applied consistently.
The broader takeaway is that disability protections do not necessarily shield an employee from the consequences of violating a legitimate workplace conduct standard. However, the employer should be able to show that its decision was based on documented conduct and consistently enforced expectations, instead of assumptions, stereotypes or frustration related to the employee’s mental health condition.
RELATED: Signs an Employee Has Reached Breaking Point >>
Before making a final termination decision, you should carefully review the situation. To do that:
Confirm whether the employee has disclosed a disability or requested an accommodation.
Engage in the interactive process and evaluate accommodations that may enable the employee to perform essential job duties.
Similar conduct should result in similar discipline regardless of disability status.
Maintain thorough documentation of performance concerns, conversations, accommodations considered, and disciplinary decisions.
Human resources or employment counsel can help ensure legal obligations have been met and reduce the risk of discrimination claims.
Disciplining or terminating an employee with a mental health condition can involve overlapping performance, conduct, ADA and FMLA considerations. Employers need a consistent process, careful documentation and experienced HR guidance—not a rushed decision based on incomplete information.
Through Axcet’s comprehensive PEO services, our certified HR professionals help small and mid-sized businesses navigate complex employee relations issues, strengthen workplace policies and manage compliance responsibilities.
Learn how outsourcing HR to Axcet can give your business the ongoing support it needs to make informed employment decisions. Reach out today >>
Written by
Kellie Rondón, SPHR, is a Human Resources Consultant at Axcet HR Solutions with over ten years of progressive HR experience and a Senior Certification in Professional Human Resources. Kellie enjoys providing clients with professional employee relations guidance, training and development, and compliance expertise catered specifically to small business. She has a passion for helping business owners and leaders strengthen their culture and business trajectory through strategic HR consulting. Her commitment to delivering peace of mind and fostering long-term client relationships is evident in her work and contributions to our team.
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