When a young airline pilot with a history of depression deliberately crashed a Germanwings plane in the French Alps, it stunned the world. It also put the spotlight on a dilemma that has confounded employers and mental health professionals for years: how to balance the employer’s obligation to keep the workplace safe with the worker’s right to medical privacy and disability accommodation.
In spite of education efforts and increased awareness, mental health issues are still treated differently than physical disabilities. Yet, mental illness results in more lost days than back pain and arthritis. Some of the issues facing employers include: persistent workplace stigma, concern for violating workers’ rights, limited use of screening, poor use of fitness for duty exams, and return to work reliance on primary care physicians.
- Workplace stigma
According to a recent study by the Disability Management Employer Coalition (DMEC), from 2012 to 2014 there has been an increase in the percentage of employers that believe workplace stigma surrounding diagnosed psychological or psychiatric disorders is growing. The executive director indicated that the report shows ” …stigma in the workplace is at higher levels than it’s ever been.”
The issue is particularly difficult because it extends beyond the workplace. As a society there is much misunderstanding about behavioral health issues, treatment possibilities, and successful outcomes. As a result of the stigma, many workers are unwilling to disclose information or seek help for fear of losing their job. Less than a third of them receive treatment, according to the Partnership for Workplace Mental Health.
- Concern for violating workers’ rights
While it is the employer’s responsibility to make sure workers are fit for duty and can perform their duties without creating a risk of harm to themselves and others, the employer cannot violate workers’ rights under federal laws such as the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). A decision earlier this year from the U.S. District Court for the Eastern District of Pennsylvania illustrates the dilemma facing employers. In Walton v. Spherion Staffing LLC, an employee who was terminated three weeks after he told his supervisor that he was having homicidal thoughts and asked for help protecting others in the workplace from him, and also requested that someone call his parents and the police, was allowed to proceed with his disability discrimination claims. Although the company could have made better decisions in handling of the case, including responding promptly, offering paid medical leave, and requesting a fitness-for-duty evaluation, the decision rattled some employers.
Even more difficult is when the employer does not know whether an employee really is a threat and a common propensity is to do nothing.
- Limited use of screening
According to the DMEC report, the use of screening for underlying psychological or psychosocial issues is used by a little less than one-third of employers and more than one-half do not screen at all for stress, anxiety, substance abuse, depression, or child/spousal/senior abuse. The most prevalent method used to identify “at risk” workers experiencing a work absence due to a psychiatric disability is self-reporting or claims.
It is interesting to note that workers’ compensation (at 43.7%) was the most common area employers screened in 2014.
- Poor use of fit for duty exams
Fitness for duty exams are used following a conditional offer of employment, when a written, consistently applied fitness-for-duty policy allows the employer to order a physical and/or mental health evaluation of a worker when a problem is identified, and the exam is job-related and based on business necessity.
While the exams can be helpful, several issues exist. First, hiring departments are often separate from safety departments and there is no communication or follow up about the pre-employment exam. There can be important information about an employees’ problematic behavior in one part of the organization that is not shared. Second, some legal counsels are wary of the exams, unless required by law, because they can conflict with laws such as the ADA. Third, once a pre-employment assessment is satisfactorily passed there is no guarantee that the employees’ behavior will remain appropriate over the lifetime of their employment. Very few employers require continuous, routine checkups so it is easy for an employee to evade detection. Fourth, due to patient privacy rights, employers don’t have access to a worker’s diagnosis or treatment plan.
Yet, the exams can be valuable in determining whether an employee does pose a threat.A recent California court decision, White v. County of Los Angeles, concluded that requesting a fitness for duty examination after an employee has been reinstated from an approved FMLA leave is within an employer’s purview and does not violate the employee’s FMLA rights, so long as the fitness for duty exam is job-related and based on business necessity. An objective reason for questioning the worker’s release to return to work and compliance with all other laws is critical.
- Return to work reliance on physicians
Although the DMEC report notes that return to work (RTW) efforts are becoming more formalized and interactive, the most significant barrier to RTW initiatives for behavioral health issues is employees relying on their primary care physician rather than seeking treatment with a mental health professional.
What can be done?
To support employees with mental illnesses, the National Mental Health Association and the National Council for Behavioral Health recommend the following actions:
- Work to reduce the stigma associated with mental illness
Creating a culture where workers feel comfortable sharing their illness and getting treatment is key. Mental illness is real, common, and treatable. As the suicide of the beloved actor, Robin Williams, painfully reminded us mental illness can affect anyone, regardless of their age, wealth, status or apparent disposition.
Encourage workers to talk about stress, workload, family commitments and other issues in a way that they don’t feel something is wrong with them. It helps to educate workers that they may be entitled to leave under FMLA and that they may seek help through the company’s employee assistance program. Early detection and treatment of mental illness can prevent a crisis and reduce employers’ health care costs.
- Educate workers about the signs and symptoms of mental illness
Colleagues can be afraid of what they don’t understand and may avoid employees with psychiatric disorders or inadvertently make the situation worse. Education is critical on identifying the signs, knowing the right things to say, and the resources that are available. Yet, employees should never attempt to diagnose peers, so a carefully planned program is essential.
As one example, DuPont’s Employee Assistance Program developed The ICU Program, which includes a five-minute video that teaches employees about emotional health and how to assist peers.
- Help employees transition back to work after they take leave
RTW programs should recognize the needs of those who are returning from mental health leave in the same thorough manner that they address those returning from physical injuries.
- Invest in mental health benefits and resources
Other steps include:
- Making thorough background and reference checks and assessment tools part of pre-employment screening
- A systematic approach to intervention ranging from supervisor to HR to a referral to EAP to Fitness for Duty assessment to leave to return to work
- Expert professional guidance, including legal and mental health professionals
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