Legal Ease Mental Health and The Workplace By Richard D. Alaniz, Alaniz Law & Associates V


irtually all the conditions classified as mental illness may or do have symptoms that could


impact an employee’s ability to perform the essential functions of their job. In many cases the illness manifests itself in conduct, behavior, or performance issues that affects their co-workers as well. Because such mental health impairments are almost always protected disabilities under the ADA and similar state laws, an employer must proceed cautiously in attempting to address these issues when they arise. Medical privacy rules similarly require discretion in addressing employee mental health conditions.


Inquiries to Employees The EEOC has stringent standards regarding what and when an employer may ask an employee about information regarding an employee’s medical (mental) health. The four circumstances under which an employer may ask questions of an employee regarding a medical condition are the following: 1. After a job offer has been made and if all applicants in a job category are asked for the same medical information;


2. When an employee has requested a reasonable accommodation;


3. When the employer is engaging in affirmative action regarding persons with disabilities; and


4. When the employer has objective evidence that an employee is unable to perform their job or poses a safety risk because of their condition.


Employers sometimes become


aware that an employee may be suffering from a mental impairment or disability that is affecting the workplace through reports from fellow employees. In most


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cases some problem behavior or incident triggers a concern among co-workers that something is amiss with the employee. A major change in personality, such as from happy to moody, confrontational or argumentative behavior and similar uncharacteristic conduct may be signs of a problem. On some occasions the employee’s supervisor may become aware of a problem when having to respond to complaints about an incident involving the employee. The possibility that a supervisor or


manager may encounter an employee mental health condition in the workplace underscores the need for the issue to be addressed in their employment issues training. Most companies seek to educate supervisors and managers regarding the appropriate response to ADA issues. Basic information on the proper response to an employee mental condition should be a part of work training. The


appropriate response to a


potential mental health issue is to carefully gather as much information as possible while maintaining appropriate confidentiality and medical privacy. A human resources representative or appropriate member of management, working in conjunction with the plant nurse or a medical practitioner, should confidentially interview witnesses to the abnormal conduct. These are not issues that should be permitted to become part of the shop talk. Once confirming information in the form of objective evidence of the questionable conduct is obtained, the employer may question the employee regarding the condition, if any, that is causing the problem behavior. Employers can request disability information only if it is job-related and consistent with business necessity.


Therefore, there must be a reasonable basis to believe


that the condition causes the employee to be unqualified for the job, requires a reasonable accommodation, or poses a direct threat to the health and safety of other employees. Given the sensitive nature of the issues, these types of discussions should occur in private, preferably including the medical review officer, plant nurse or safety professional if possible. It is quite common for the employee to deny that there is a problem. The employer must nonetheless proceed without being confrontational. It is possible that mere questions about what could be causing the employee’s behavior could trigger the problem conduct.


Permissible Action If


it is determined that the employee’s medical (mental) condition is limiting the employee’s ability to properly perform his/her job or creating disruptions or safety issues in the workplace, especially if the employee denies there is an issue, the employer may require a fitness for duty examination.


The examination


must be “job related and consistent with business necessity”. A fitness for duty exam would also be appropriate if it appears that the employee’s mental condition could pose a danger to the employee or co-workers. It is precisely in these circumstances that an established relationship with a medical clinic that is familiar with industrial medicine, and your specific jobs is most useful. The


medical professional


conducting the exam should have available the employee’s job description or at a minimum, the essential job functions.


The employee’s personal


physician or medical provider should be consulted for any input that may help in performing the assessment. If the exam does not totally disqualify the employee from employment, potential reasonable


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