Mental Health Issues in the Workplace

Many employers seem almost paralyzed by the oft-present fear over whether and how to raise the issue with an employee. If the mental illness is having adverse impacts in the workplace, however, not addressing the issue can compound the problem or, in rare circumstances, lead to tragic consequences.

A Delicate Balance

The fundamental challenge in managing mental illness in the workplace is striking the right balance between maintaining employee privacy and confidentiality and ensuring the safety of all employees. These are both compelling, but can at times be competing, interests. Knowing how to properly balance them can greatly reduce the opportunities for the kinds of workplace tragedies that often make the headlines.

In order to navigate these challenges, employers should have a basic understanding of the main federal law that regulates employee medical issues: the American with Disabilities Act (the ADA) ' which comprises a long list of requirements and restrictions, but here are the most basic of them. First, it prevents employers from discriminating against employees with disabilities. A disability is technically defined as a physical or mental impairment that substantially limits a major life activity, but is broad enough in reality to include most medical conditions. So employees with medical conditions must be treated the same as others. Second, the ADA requires employers to accommodate employees with disabilities (if necessary, and only if reasonable) to enable them to perform on the same level as other employees. Notably, this accommodation requirement can be rather significant. Third, the ADA requires that employee medical information be treated as confidential. And, last, it regulates when employees can be subjected to medical examinations and inquiries. In short, that can be only after a conditional job offer is extended or, later, if job-related and truly necessary.

Although the ADA is packed with employee protections, it is sufficiently flexible to afford employers several options for addressing workplace issues that may be driven by employee mental illness. These issues may be addressed at either the pre-employment or the post-employment stage. How they are addressed, however, is key.

Employers may not ask job applicants about their medical history or require them to submit to medical examinations until after a job offer has been extended. Once it has, potential employees may be asked extensively about their (personal) medical history or required to submit to comprehensive medical examinations. Although this may sound liberal, what is most regulated is what the employer may do with the information. If an employer decides to withdraw a job offer based on this medical information, it may lawfully do so only if the reason is job-related and a business necessity ' and only if no accommodation of the medical issue is possible.

A Business Necessity

What this means in reality is that employers who choose to inquire into potential employees' medical (including mental) histories and abilities should ensure that those inquiries are not only related to the job, but necessary for the business. A thorough vetting of the inquiry process is important. Employers should frame questions carefully and include medical professionals in the process. And they should be prepared to defend the legitimacy of the inquiries if challenged by either a rejected applicant or a fair-employment governmental agency.

Once applicants transition to employees, employers must guide themselves by similar principles. Employers are permitted to require employees to submit to medical examinations, but the examinations must be job-related and necessary for the business. Most employers do not conduct, and do not need to conduct, routine medical examinations. Those that do conduct them need to ensure not just that the information collected is job-related and a business necessity, but that the examination itself meets this standard.

Because of the inherent challenges in detecting, diagnosing and monitoring mental illness, even employers that conduct medical examinations often cannot effectively inquire into the subject. Medical examinations can provide a false sense of security. Any time an employer chooses to conduct medical examinations, a medical professional should be closely consulted not just about the content of the examination, but also about its reliability.

The issue of mental illness arises in the workplace most often when it manifests as an employee problem. An employer may observe or other employees may report low productivity, poor attendance, interpersonal conflict, or troublesome behavior and suspect mental illness may be responsible. When they do, employers can and should investigate. But, again, how the issue is addressed is key.

Addressing Waning Performance

I advise clients to focus on the facts, not on suspicions. If performance is markedly low, attendance poor or behavior unacceptable, only that problem should be discussed with the employee. An employer's or a colleague's suspicions about the source of the problem should not be raised. Period. The employer should discuss with the employee its legitimate expectations and the areas where the employee's conduct either is or may be falling short. If the conduct or deficiencies are tied to a mental health issue, let the employee make that connection ' if he chooses to do so. After all, the reason the issue is being raised is because it needs correction. As long as the issue is corrected, long term, then the problem is solved.

If the employee does not connect a performance or behavior issue to mental illness, then take the suspicion out of the equation and treat it as a routine performance or behavior improvement situation. After communicating your legitimate expectations and advising how the employee must improve, if he does not do so after a fair amount of time, then move forward with the next step of corrective action. It is almost always incumbent upon the employee to raise mental illness as a factor before the employer has an obligation to change its routine approach to the situation.

Should an employee choose to raise a mental health issue during such a discussion, she should be cautioned to share only the information related to the conduct or performance at issue, and assured that any information she shares will be treated confidentially. If an employer suspects that mental illness may be driving a performance or behavior issue, Human Resources should be involved in the discussion in the event the employee does raise the topic.

When an employee raises mental health issues, an employer must satisfy itself that the employee remains fit to perform his job duties and must determine whether the employee may need some kind of accommodation. This can be a multi-tiered process. It usually first requires a discussion with the employer to understand his perspective on the situation. Once armed with that information, an employer often will need documentation or additional information from the employee's treating health care professional, either to confirm what the employee has reported or to obtain additional facts about it.

Fitness for Duty

Sometimes information from the employee and her treating health care provider may suffice. But other times employers also may need or just want to consult with their own medical or mental health professional to better understand a situation or to obtain guidance on next steps. I recommend that my clients have a medical professional on retainer for quick consultations or quick referrals to specialists. In some cases a fitness for duty examination is warranted. Especially in that case, however, a medical professional should first be consulted so that the decision is based on a professional medical assessment, not a lay assessment. This ensures better ' and more defensible ' decisions.

Ultimately the employee's own health care provider or the employer's assessing physician may provide advice and recommendations on whether and how to manage the condition in the workplace. If an employee's mental illness is medically assessed as posing a significant, ongoing workplace risk, the illness might not be suited accommodation. Or it may be suited to accommodation, but not in the employee's current role. Employers should consider what other positions the employee could safely and adeptly fill or whether aspects of the employee's current position (such as work hours or work environment) could be adjusted to better enable the employee to perform the job. The employer does not have to accept the employee's requested accommodation, as long as it provides an effective solution. Ultimately, it is the employer that decides what accommodations, if any, will be provided.

If an employer decides that an employee's mental condition cannot be accommodated in the workplace, it may be because the employee poses a direct threat to herself or others. The ADA recognizes that some conditions simply cannot be accommodated, but it sets a high standard of proof. Employees must pose a significant risk of substantial harm to the health or safety of themselves or others to constitute a direct threat. If an employer believes that an employee's workplace issues are significant enough that she should be banned from the workplace, in almost every circumstance a fitness for duty examination should be conducted by a mental health professional. Because this is such a high legal standard, expert medical advice is essential.

Conclusion

An unfortunate aspect of our litigious society is the fact that simply engaging employees in these conversations will expose employers to legal claims. That is one of many reasons why it is so important to approach these conversations properly. But concern over legal liability cannot be prioritized over workplace safety.

Sarah Wimberly leads the air- line employment practice at Ford- Harrison in the firm's Atlanta of- fice. Reach her at [email protected].

The challenges inherent in managing employee mental illness were vividly illustrated for the world in March of this year with the intentional crash of a Germanwings aircraft by an apparently mentally ill pilot. Although the repercussions of such tragic events can be more significant in safety-sensitive industries like transportation, these kinds of tragic events can happen in any workplace. And the headlines unfortunately often just reinforce the very stereotypes that our laws were intended to eradicate.

Background

Mental illness is more prevalent than many think. The National Institute of Mental Health estimates that almost 20% of American adults suffer from some kind of mental illness, but that only about half of those affected receive any kind of treatment. Although the stigma that attaches to mental illness has lessened somewhat over recent years, employees whose mental illness is impacting their workplace performance or behavior are often reluctant to disclose it to their employer. And sometimes employees do not even realize that mental illness is the cause of poor performance or problematic behavior.

Many employers seem almost paralyzed by the oft-present fear over whether and how to raise the issue with an employee. If the mental illness is having adverse impacts in the workplace, however, not addressing the issue can compound the problem or, in rare circumstances, lead to tragic consequences.

A Delicate Balance

The fundamental challenge in managing mental illness in the workplace is striking the right balance between maintaining employee privacy and confidentiality and ensuring the safety of all employees. These are both compelling, but can at times be competing, interests. Knowing how to properly balance them can greatly reduce the opportunities for the kinds of workplace tragedies that often make the headlines.

In order to navigate these challenges, employers should have a basic understanding of the main federal law that regulates employee medical issues: the American with Disabilities Act (the ADA) ' which comprises a long list of requirements and restrictions, but here are the most basic of them. First, it prevents employers from discriminating against employees with disabilities. A disability is technically defined as a physical or mental impairment that substantially limits a major life activity, but is broad enough in reality to include most medical conditions. So employees with medical conditions must be treated the same as others. Second, the ADA requires employers to accommodate employees with disabilities (if necessary, and only if reasonable) to enable them to perform on the same level as other employees. Notably, this accommodation requirement can be rather significant. Third, the ADA requires that employee medical information be treated as confidential. And, last, it regulates when employees can be subjected to medical examinations and inquiries. In short, that can be only after a conditional job offer is extended or, later, if job-related and truly necessary.

Although the ADA is packed with employee protections, it is sufficiently flexible to afford employers several options for addressing workplace issues that may be driven by employee mental illness. These issues may be addressed at either the pre-employment or the post-employment stage. How they are addressed, however, is key.

Employers may not ask job applicants about their medical history or require them to submit to medical examinations until after a job offer has been extended. Once it has, potential employees may be asked extensively about their (personal) medical history or required to submit to comprehensive medical examinations. Although this may sound liberal, what is most regulated is what the employer may do with the information. If an employer decides to withdraw a job offer based on this medical information, it may lawfully do so only if the reason is job-related and a business necessity ' and only if no accommodation of the medical issue is possible.

A Business Necessity

What this means in reality is that employers who choose to inquire into potential employees' medical (including mental) histories and abilities should ensure that those inquiries are not only related to the job, but necessary for the business. A thorough vetting of the inquiry process is important. Employers should frame questions carefully and include medical professionals in the process. And they should be prepared to defend the legitimacy of the inquiries if challenged by either a rejected applicant or a fair-employment governmental agency.

Once applicants transition to employees, employers must guide themselves by similar principles. Employers are permitted to require employees to submit to medical examinations, but the examinations must be job-related and necessary for the business. Most employers do not conduct, and do not need to conduct, routine medical examinations. Those that do conduct them need to ensure not just that the information collected is job-related and a business necessity, but that the examination itself meets this standard.

Because of the inherent challenges in detecting, diagnosing and monitoring mental illness, even employers that conduct medical examinations often cannot effectively inquire into the subject. Medical examinations can provide a false sense of security. Any time an employer chooses to conduct medical examinations, a medical professional should be closely consulted not just about the content of the examination, but also about its reliability.

The issue of mental illness arises in the workplace most often when it manifests as an employee problem. An employer may observe or other employees may report low productivity, poor attendance, interpersonal conflict, or troublesome behavior and suspect mental illness may be responsible. When they do, employers can and should investigate. But, again, how the issue is addressed is key.

Addressing Waning Performance

I advise clients to focus on the facts, not on suspicions. If performance is markedly low, attendance poor or behavior unacceptable, only that problem should be discussed with the employee. An employer's or a colleague's suspicions about the source of the problem should not be raised. Period. The employer should discuss with the employee its legitimate expectations and the areas where the employee's conduct either is or may be falling short. If the conduct or deficiencies are tied to a mental health issue, let the employee make that connection ' if he chooses to do so. After all, the reason the issue is being raised is because it needs correction. As long as the issue is corrected, long term, then the problem is solved.

If the employee does not connect a performance or behavior issue to mental illness, then take the suspicion out of the equation and treat it as a routine performance or behavior improvement situation. After communicating your legitimate expectations and advising how the employee must improve, if he does not do so after a fair amount of time, then move forward with the next step of corrective action. It is almost always incumbent upon the employee to raise mental illness as a factor before the employer has an obligation to change its routine approach to the situation.

Should an employee choose to raise a mental health issue during such a discussion, she should be cautioned to share only the information related to the conduct or performance at issue, and assured that any information she shares will be treated confidentially. If an employer suspects that mental illness may be driving a performance or behavior issue, Human Resources should be involved in the discussion in the event the employee does raise the topic.

When an employee raises mental health issues, an employer must satisfy itself that the employee remains fit to perform his job duties and must determine whether the employee may need some kind of accommodation. This can be a multi-tiered process. It usually first requires a discussion with the employer to understand his perspective on the situation. Once armed with that information, an employer often will need documentation or additional information from the employee's treating health care professional, either to confirm what the employee has reported or to obtain additional facts about it.

Fitness for Duty

Sometimes information from the employee and her treating health care provider may suffice. But other times employers also may need or just want to consult with their own medical or mental health professional to better understand a situation or to obtain guidance on next steps. I recommend that my clients have a medical professional on retainer for quick consultations or quick referrals to specialists. In some cases a fitness for duty examination is warranted. Especially in that case, however, a medical professional should first be consulted so that the decision is based on a professional medical assessment, not a lay assessment. This ensures better ' and more defensible ' decisions.

Ultimately the employee's own health care provider or the employer's assessing physician may provide advice and recommendations on whether and how to manage the condition in the workplace. If an employee's mental illness is medically assessed as posing a significant, ongoing workplace risk, the illness might not be suited accommodation. Or it may be suited to accommodation, but not in the employee's current role. Employers should consider what other positions the employee could safely and adeptly fill or whether aspects of the employee's current position (such as work hours or work environment) could be adjusted to better enable the employee to perform the job. The employer does not have to accept the employee's requested accommodation, as long as it provides an effective solution. Ultimately, it is the employer that decides what accommodations, if any, will be provided.

If an employer decides that an employee's mental condition cannot be accommodated in the workplace, it may be because the employee poses a direct threat to herself or others. The ADA recognizes that some conditions simply cannot be accommodated, but it sets a high standard of proof. Employees must pose a significant risk of substantial harm to the health or safety of themselves or others to constitute a direct threat. If an employer believes that an employee's workplace issues are significant enough that she should be banned from the workplace, in almost every circumstance a fitness for duty examination should be conducted by a mental health professional. Because this is such a high legal standard, expert medical advice is essential.

Conclusion

An unfortunate aspect of our litigious society is the fact that simply engaging employees in these conversations will expose employers to legal claims. That is one of many reasons why it is so important to approach these conversations properly. But concern over legal liability cannot be prioritized over workplace safety.

Sarah Wimberly leads the air- line employment practice at Ford- Harrison in the firm's Atlanta of- fice. Reach her at [email protected].