Difficult situations come with the territory of running a business. Employees may face domestic violence, a death in the family, or mental health issues, which employers must handle with care. Here we provide guidelines for addressing these types of situations.

Domestic violence:

Relevant laws:

Several states and local jurisdictions have enacted laws that provide employment protections for victims of domestic violence, sexual assault, and stalking, such as prohibiting discrimination and requiring employers to grant leave so victims can seek legal redress, counseling, or relocation services.

For example, the District of Columbia recently enacted a law that prohibits discrimination against victims (and family members of victims) of domestic violence, sexual offenses, and stalking and requires employers to provide reasonable accommodations to ensure the victim's safety.

Several states and local jurisdictions that require paid sick leave also require employers to allow employees to use the sick leave for reasons related to domestic violence.

Interaction with ADA:

Keep in mind that if the employee suffers a mental or physical injury that qualifies as a disability, they may be entitled to a reasonable accommodation under the federal Americans with Disabilities Act (ADA) and/or similar state laws. Review the U.S. Equal Employment Opportunity Commission (EEOC)'s guidance and any state rules pertaining to protections for applicants and employees who experience domestic violence, sexual assault, or stalking.

How to respond:

If an employee notifies you that they or a family member have been a victim of domestic violence comply with all relevant laws and demonstrate understanding and compassion. Let the employee know that it must have been difficult for them to tell you, and share any company policies and programs that can help. Even when employers aren't required to do so, many offer support, such as:

• Allowing victims to use paid or unpaid leave to get help.
• Providing flexible work schedules to victims.
• Referring victims to the company's employee assistance program.
• Taking steps to help prevent abusers from accessing victims, such as changing work phone numbers or email addresses when appropriate.
• Installing locks and other security measures.
• Implementing additional safety procedures, such as using a buddy system when walking to their car at the end of a shift.
• Training supervisors on how to respond when an employee reports they're a victim of domestic violence and on how to maintain privacy.
• Promoting awareness about domestic violence and the company's policies and programs that can help victims.

Death in the family:

A few states have enacted protections for employees who experience a death in the family. For example, the Oregon Family Leave Act requires employers with 25 or more employees to grant eligible employees leave after the death of a family member. In Illinois, employers with 50 or more employees must provide up to 10 days of unpaid leave when an employee's child dies. Some jurisdictions with paid sick leave programs also give employees the right to use paid sick leave when a family member dies.

Even in the absence of a state or local requirement, many employers offer time off to employees so they can attend funeral services and grieve a family member who has died. Regardless of whether you offer bereavement leave voluntarily or because state law requires you to do so, it's a best practice to put the policy in writing. Here are some things to consider:

• Define who is covered. Will only full-time employees be entitled to bereavement leave? Or will part-time employees be entitled to this leave as well?
• Which situations are covered? Will the company allow time off for the death of a person outside the family, such as a close friend, or will bereavement leave be limited to a death of a family member? Clearly define covered individuals and family members.
• Set a limit. Absent a state or local requirement, you are free to choose a limit on bereavement leave that makes sense for your company. Employers typically provide at least three days per year.
• Paid or unpaid? Employers generally have the option of determining whether the time off is paid or unpaid. Employers that offer unpaid leave typically allow employees to substitute other accrued paid time off.
• Documentation. Most employers don't require employees to provide documentation to confirm the need for bereavement leave. If you do, indicate this in your policy.
• Requests. Outline the procedures for requesting bereavement leave. Many employers simply ask that employees let their supervisor know as soon as possible.

Mental health issues:

Interaction with ADA:

There are several federal and state laws that may protect workers with mental health issues. For example, the ADA prohibits employers with 15 or more employees from discriminating against qualified applicants and employees because of a physical or mental disability. Under the law, an individual is considered to have a disability if they have: (1) an impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) is regarded as having such an impairment. Individuals with emotional or mental illness may qualify as disabled under the ADA if they meet one of these three criteria.

Note: While the definition of disability is interpreted broadly, if you're not sure whether a mental health issue is considered a disability, consult legal counsel to understand your rights and responsibilities.

Several states have enacted laws similar to the ADA, some of which define disability more broadly and/or apply to employers with fewer than 15 employees. Also, depending on the situation, there may be additional protections, such as those covering employees of federal and state contractors.

Reasonable accommodations:

The ADA requires that employers provide a reasonable accommodation to a qualified applicant or employee with a disability, unless doing so would cause undue hardship to an employer's business operations. An accommodation is a modification or adjustment to the work environment that will enable a qualified applicant to participate in the application process, or help an employee with a disability perform the essential functions of the job.

If an employee requests a reasonable accommodation, or puts you on notice of the need for a change at work due to a mental illness that would qualify as a disability, begin the interactive process (or dialogue) with the employee to identify an appropriate reasonable accommodation.

Performance issues:

In some cases, the employee may notify you of a mental disability during a performance review or a disciplinary meeting. The employee's performance rating should reflect their performance regardless of what role, if any, the disability may have played. However, once you learn about the employee's mental illness, begin a discussion with the employee to determine whether the disability impacts their performance and if a reasonable accommodation could address the problem.

If the employee violates a workplace rule that is job-related and consistent with business necessity, and all employees are held to the same standard, you can generally hold the employee responsible for the misconduct. Examples of workplace rules that are typically job-related and consistent with business necessity include rules prohibiting violence, threats of violence, stealing, or destruction of property. Consult legal counsel before disciplining an employee for misconduct that might be connected to their disability.

Conclusion:

Make sure you are handling difficult employee situations with care and in compliance with federal, state, and local laws.