Legal Blog

Psychiatric Illness in the Workplace: a Guide for HR (Part 2)

It is no simple matter to confront psychiatric illness in the workplace. When an HR manager discovers that an employee is suffering from suicidal thoughts, substance abuse issues, or any other mental disorder, it not only results in an awkward, uncomfortable situation but brings up a mountain of legal issues related to disability and confidentiality. In my previous article in this series, we explored common psychiatric illnesses in the workplace and how, in Dr. Heitt’s words, employees present these conditions. In this installment, I will break down how employers can best accommodate psychiatric illness while remaining compliant with state and federal disability laws. I will also look at how a consulting psychologist, such as Dr. Heitt, offers support to workplaces contending with complex mental issues. But first, let’s address a basic question:  How does the employer learn of the psychiatric illness in the first place?

Discovering Psychiatric Illness

In an informal poll I conducted during my July 2014 webinar, 62 percent of HR professionals reported they found out an employee had a psychiatric illness after the employee self-disclosed their condition while  27 percent said they learned about the condition after an employee requested a leave of absence.  Otherwise, it was learned by someone else disclosing the condition on behalf of the employee or direct inquiries into the employee’s disability status. While these statistics may or may not represent wider trends, they do illustrate the various ways managers and employees initiate conversations about psychiatric illness. You may also find out about a condition following an accident on the job, or a bout of absenteeism. Asking an employee about their condition directly can be problematic under the Americans with Disabilities Act (ADA). If you suspect an employee has an undisclosed mental disability, avoid a confrontation; instead, approach the matter as it relates to job performance, and offer understanding and support.  Stigma associated with psychiatric illness can prevent an employee from opening up about their condition, and employers should be aware of how workplace policies and culture may contribute to an environment of fear around and concealment of mental issues.

The Role of a Consulting Psychologist

Faced with issues stemming from psychiatric illnesses beyond what a human resources department can handle, many companies choose to consult an employment attorney and/or engage a consulting psychologist.  Unlike a treating clinician, whose alliance lies firmly with their patient, a consulting psychologist must juggle their responsibilities to the person suffering from psychiatric illness and the responsibilities to the organization—the consulting psychologist’s client.  Effective consulting psychologists set and maintain clear boundaries: they do not provide outside therapy for subjects of workplace evaluations, nor do they allow the subject’s interests to overtake the interests of the company. Just as critical as defining the identity of the client is specifying the referral questions. Consulting psychologists like Dr. Heitt cannot accurately predict specific human behavior, such as violent episodes in the workplace. Instead, Heitt gives employers a list of pre-determined questions based upon their needs, then uses those responses to write his report.

How to Handle Documentation

As with all other kinds of workplace issues, it is crucial to document all incidents related to an employee’s disability status. The first thing an employer should do is request that the employee provide a disability certification from the employee’s medical provider and/or treating clinician.  Medical documents, including FMLA forms and disability certifications, must be kept separately from the employee’s personnel file. Under the Americans With Disabilities Amendments Act (ADAAA), an employee’s direct supervisor cannot request additional documentation from the employee’s medical provider. A member of the HR department, or another supervisor, may make the call.  I highly recommend that HR have the employee sign a release authorizing contact between their HR representative and their medical provider.  A company can also ask legal counsel to set up contact with the employee’s medical providers, if there has been a lack of employee cooperation. Remember, psychiatric illness is on a need-to-know basis in the workplace.  Do not ask the employee or bring it up in conversation if it is unrelated to the job.

Common Accommodations for Psychiatric Illnesses

After an employee’s psychiatric condition is documented, and the employee requests an accommodation for his/her disability,  employers must engage with the employee in a discussion about what accommodations are sought, reasonable, and can allow the employee to perform his/her job duties.  The employer should offer reasonable and appropriate accommodations for employees with psychiatric conditions. Here are several common adjustments companies make:

Time Off

Employers sometimes allow time off for an employee’s appointments with their therapist or medical providers, as well as break periods to aid with the drowsiness that some medications cause as a side effect. Flexible schedules are another option for employees who have a hard time functioning in the morning, but can still perform their job duties at later (or earlier) hours.  Of course, a medical leave of absence is another option (as per the FMLA) and should be offered to any employee who becomes hospitalized due to a psychiatric illness, assuming the employer is large enough to make such an accommodation.

Decreased Distraction

Some employees with psychiatric illnesses, primarily those suffering from attention deficit disorders, may work better when provided methods to control noise and distraction. Headphones, white noise machines, higher cubicle walls, or a private office away from others are all measures worth considering when dealing with an employee for whom distraction poses a problem.

Reassignment of Tasks

In some cases, a person’s phobia can preclude their ability to perform their job’s essential functions. An employee who is afraid of public speaking, for example, may not be the right fit for a spokesperson role. On the other hand, there are plenty of cases in which a co-worker can take on the tasks a disabled employee cannot carry out, in exchange for other tasks. Aside from public speaking (a frequent work-related fear), some employees—such as those suffering from depression—may not be able to concentrate for long periods of time on detailed number crunching. In either scenario, employers should judge for themselves whether the disability warrants a reassignment of tasks—if reassignment is indeed available—or requires other measures.  This is always done on a case-by-case basis.

Reassignment of Location/Peers

Interpersonal issues can arise from all sorts of mental conditions, especially mood disorders, and may cause workplace conflict if left unaddressed. Employers can mitigate these issues, and minimize stigma linked to the symptoms of visible mental illness (e.g., grunting, twitching, or tics) to which some people may be sensitive, through reassignment.  Location reassignment can help those for whom certain locations or individuals trigger anxious episodes related to Post Traumatic Stress Disorder (PTSD).

Medical Side Effects

Psychiatric medications cause a range of side effects, from mood swings and dry mouth to changes in energy and appetite.  Managers may need to allow employees on medication to consume beverages, food, and/or chew gum—even near computers or other machinery – where such items usually are not allowed.

Cognitive Aids

Cognitive aids for employees with psychiatric illnesses need not cost a fortune. Parties should determine ahead of time who will pay for such aids to avoid prolonging the process.  Inexpensive cognitive aids include recording devices such as a tape recorder or Smartphone app, note taking software (or a dedicated employee who takes notes for a disabled individual at meetings), and simple reminders.  Remember that the ADA requires only that the employer make reasonable accommodations.  So, for example, if the employee insists on new age technology such as Google Glass ($2,000 cost) when a free smart phone app would suffice, it is unlikely any reasonable person would deem that necessary. Looking for more ways to possibly accommodate mental disabilities in the workplace?  Dr. Heitt recommends Boston University’s Center for Psychiatric Rehabilitation which has put together a thorough information page on reasonable accommodations that comply with the ADA.  Questions for Dr. Heitt can be directed to him at 410-580-9047 or via email Michael@BaltimorePsychologists.com.

 

ABOUT OFFIT KURMAN

Offit Kurman is one of the fastest-growing, full-service law firms in the Mid-Atlantic region. With over 135 attorneys offering a comprehensive range of services in virtually every legal category, the firm is well positioned to meet the needs of dynamic businesses and the people who own and operate them. Our eleven offices serve individual and corporate clients in the Virginia, Washington, DC, Maryland, Delaware, Pennsylvania, New Jersey, and New York City. At Offit Kurman, we are our clients’ most trusted legal advisors, professionals who help maximize and protect business value and personal wealth. In every interaction, we consistently maintain our clients’ confidence by remaining focused on furthering their objectives and achieving their goals in an efficient manner. Trust, knowledge, confidence—in a partner, that’s perfect.

You can connect with Offit Kurman via our Blog, Facebook, Twitter, Google+, YouTube, and LinkedIn pages. You can also sign up to receive Law Matters, Offit Kurman’s monthly newsletter covering a diverse selection of legal and corporate thought leadership content.

MARYLAND | PENNSYLVANIA | VIRGINIA| NEW JERSEY | NEW YORK | DELAWARE | WASHINGTON, DC