Legally Speaking

by Bob Dunlevey and Nadia A. Klarr

Taft/Law

Workplace Mental Health Issues Abound!

             It seems as though employers are being overwhelmed by their employees’ mental health issues these days – something that cannot be ignored any longer, but something that is both delicate and difficult to deal with.  Employers need to take the time to understand these issues and address them effectively and strategically so as to avoid claims of disability discrimination and incidents of workplace misconduct.

            The new generation of employees comes to the workplace the product of a past environment which seems to have over diagnosed, over medicated, and over counseled them as children and young adults – many have been made dependent and ill-adjusted. Many lack interpersonal skills.  The list of conditions go on forever – anxiety, depression, PTSD, bipolar disorder, schizophrenia, and attention deficit disorder to name just a few.  Compounding the problem is that an unacceptable number of employees have drug and/or alcohol addiction issues.  That list of controlled substances goes on forever as well – meth, heroin, cocaine, pot, and fentanyl seem to be the most prevalent. Almost two thirds of workers claim their productivity has been affected by their mental health issues.  Approximately one in five claims some form of mental illness each year.  All of these psychosis and addictions severely impact the performance of an employee and can create undue risks for violence in the workplace. They also are causing healthcare costs to rise disproportionately.

            Not only are there legitimate mental health issues for employers to tackle, but more concerning is that employees know that when their performance, attendance, or ability to get along with fellow employees is questioned, they can feign a mental condition and attempt to cloak themselves with the protections of the Americans with Disabilities Act.  Just recently, a young employee in a testing lab dropped and destroyed an expensive piece of equipment on loan from a customer.  Before the employer could even investigate the facts and circumstances for possible negligence, the employee claimed that the event was caused solely by his PTSD – a condition never once previously mentioned to anyone.  In a manufacturing facility earlier this year, two employees alleged that they were overcome by chemical fumes in the workplace and needed accommodation only to have the employer eventually learn that they were “huffing” solvents to get high during their work shift on a Friday night. 

            Is your management team ready to address this onrush of mental health issues?  Don’t forget your more mature supervisors and managers did not grow up in this climate of “over diagnosis” and are not necessarily equipped to recognize or to meaningfully handle these problems.

            Employers are taking steps to better deal with these issues.  Some of the actions you may wish to consider are:

• Screen applicants more carefully for employment, both for physical and psychological conditions (but remember ADA regulations require the offer of employment before the screening occurs);
• Educate your HR staff, supervisors, and management team on the signs and symptoms of mental conditions and addiction and encourage them to bring questionable employee conduct to your attention immediately;
• Ensure that your company has an effective EAP program that makes available comprehensive psychological services;
• Know and follow the disability laws – make sure to engage in the “interactive process” upon request by an employee to determine if a reasonable accommodation can be made for an actual mental impairment which limits his or her major life activities. But, remember, the employee must still be able to perform the essential functions of the job without being a threat;
• Avoid falling into the trap of immediately acknowledging that an employee has a disability which is allegedly limiting performance substantially, attendance, or interpersonal actions – treat the employee’s misconduct as being unrelated to any alleged condition until there is ample proof of a disability causing the problem;
• In dealing with these types of employees, document extensively their performance shortcomings but don’t document perceived or claimed mental health conditions;
• For mental conditions causing threats or actual incidents of violence in the workplace, be quick to address the situation – it’s an opportune time to consider termination. Judges, juries and civil rights agencies do not condone and won’t support violent misbehavior and can understand why an employer would not give an employee a “second chance.”  Remember, an employer need not accommodate a safety threat;
• Consider having not only a “company” medical doctor but also a healthcare provider proficient in dealing with mental illnesses and addiction;
• Encourage your employees to strive for work-life balance;
• Create a positive workplace environment and eliminate undue stressors.

The increased frequency of mental health issues arising in the workplace is becoming a heavy burden for employers – operationally and financially.  Consider today what you can do to better address these issues.

            For further information, including a list of possible accommodations, use the DBX Member Legal Services Plan and contact attorneys Bob Dunlevey or Nadia A. Lampton at (937) 228-2838 of Taft/Law.