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Addiction, bipolar disorder, post-traumatic stress disorder (PTSD), depression.
“There are a lot of different kinds of mental illness that can appear in the workplace, and it’s a serious issue,” said Deirdre Kamber Todd, a partner with the Kamber Law Group PC and board member of the Society for Human Resource Management’s Lehigh Valley, Pa., chapter.
Each year, more than 41 million Americans experience some type of mental illness,
HR Magazine reported in September 2014, citing data released by the U.S. Substance Abuse and Mental Health Services Administration in 2013.
HR News reported in November 2014 that employer support is lacking for employees who have experienced mental illness.
“It is very difficult to know how to cope with this—not only legally but also appropriately, while being respectful of privacy,” Kamber Todd said.
She gave a webinar Jan. 7, 2015, on Coping with an Employee’s Mental Illness: Relevant Laws and Best Practices, presented by New York-based Park Avenue Presentations Inc. Kamber Todd spent much of it discussing federal laws as they relate to mental illness, including the Americans with Disabilities Act (ADA), the Family and Medical Leave Act, and the Health Insurance Portability and Accountability Act.
“Mental and psychological disorders entitled to protection from discrimination under the ADA include specific learning disabilities, intellectual disabilities, and diagnosed emotional or mental illnesses such as major depression or bipolar disorder,” she said.
The ADA, she noted, considers emotional and mental conditions such as bipolar disorder and schizophrenia to be disabilities even if the individual is stabilized with medication and treatment.
The law requires employers to consider
reasonable accommodations for workers with mental illness, just as it requires accommodation for physical ailments.
Under the ADA, the interactive process takes place between employer and employee. Some employers rely on documentation from a medical practitioner to verify the employee’s disability and then will talk with the employee to work out an accommodation—one that is reasonable for both the worker and the company. Kamber Todd considers it a best practice to get a legal opinion and, also, the opinion of the employee’s health practitioner about reasonable accommodations.
“You need to know whether there’s a doctor involved. There has to be a diagnosis,” she said. Regardless of whether the employee has a physical or mental illness, “always work with a health care practitioner,” she said. “Work with them, predominately, to determine what would be an accommodation.”
That requires obtaining the employee’s written authorization to speak with the health care practitioner.
She cited the example of one worker suffering from anxiety who asked not to receive any criticism on the job. The problem, Kamber Todd pointed out, is that the employer needed to give honest feedback, including negative feedback if it was warranted.
The employer, with the employee’s written permission, spoke to the employee’s health practitioner, who said it would be appropriate to provide negative feedback in writing several days prior to talking in person; this gave the employee time to prepare for the conversation.
If the medical practitioner is vague with the employer about the employee’s health issue, return to the employee to explain that the information provided was insufficient, and ask for authorization to get enough information so as to be able to provide reasonable accommodation, she advised.
“You don’t want to know anything that exceeds what’s related to the medical condition” though, she warned. “Cut off employees when they start going into medical conditions that are not related to work, [explaining] ‘This is our policy.’ And it should be in your policy that the information is not shared with anyone except on a need-to-know basis.”
In addition, the U.S. Department of Labor’s Office of Disability Employment Policy notes that not all employees with psychiatric disabilities need accommodations to perform their jobs.
Kamber Todd cautioned employers not to mistake one type of health-related issue for another. She recalled an employee whom co-workers claimed came to work intoxicated because he stared into space at various times. He was not intoxicated; he had severe obsessive compulsive disorder. It did not affect the quality of his work and no accommodation was necessary.
She advised managers concerned about an employee to talk to that person and ask if he or she is OK.
“You have to figure out what’s happening. Is this person impaired? Are they coming in after a big weekend in Vegas? That’s very different from someone with PTSD,” Kamber Todd pointed out.
“If he says ‘I’m fine,’ you’re pretty much off the hook,” she said, but stressed the need for documenting such inquiries and conversations. Documentation should be factual, such as noting that an employee acting erratically smelled of alcohol.
Afterwards, perform a self-audit to determine how a situation with an employee could have been better managed. “Learn how to handle the situation and be able to understand the difference between [the effects of] medication versus illness, and evaluate competence,” she said.
Kathy Gurchiek is the associate editor at HR News. Follow her @SHRMwriter.
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