The Employer’s Role in Mental Health Care

 
 

employee mental health

In March, Germanwings Flight 9525 crashed in the French Alps, killing all 150 passengers and crew members on board. Investigators later determined that the crash was deliberately caused by co-pilot Andreas Lubitz, who had a history of depression, reportedly exhibited suicidal tendencies and contacted a number of doctors for help in the weeks before the disaster.

The incident provoked a long overdue discussion on an employer’s role in mental health. According to the National Alliance on Mental Illness, one in five adults in the United States suffers some sort of mental illness and 14.8 million live with major depression. In the workplace, depression costs tens of billions of dollars from lost productivity, workplace accidents, distraction and fatigue. A landmark Canadian study of clinically depressed workers found that 96% of respondents suffered fatigue, 93% experienced loss of concentration, and 70% said their depression made them less efficient at work.

While individuals with mood disorders are usually more of a threat to themselves than others, the effects of depression may lead to conflicts with coworkers and even influence the employee’s view of whether their employer mistreats or discriminates against them. Legal, ethical and moral dilemmas often come into conflict when determining the best course of action for addressing these mental health issues at work.

Legal Barriers

Many employers want to do “the decent thing” and reach out to a valued employee who appears to be suffering from some sort of mental health issue, but lawyers have scared them away from doing so. Actual or perceived mental disorders can be disability conditions under the Americans with Disabilities Act (ADA), so attorneys often instruct employers to ignore underlying concerns and focus solely on performance, treating each employee exactly the same as other workers in that position. The courts and the Equal Employment Opportunity Commission narrowly define the kind of direct threat that could present an exception and can be almost dismissive of even reasonable employer concerns, so why risk it?

These legal parameters result in employers adopting a “don’t ask, don’t tell” approach to employees whose ­performance problems may be the result of an underlying illness. Employees assume they will be stigmatized if they seek help, and employers are afraid to even ask why workers are struggling. Yet, in many cases, employees with depression could return to their previous performance levels with proper care. Instead, they continue to suffer.

The Germanwings crash demonstrated that employers need to act, but they must approach the problem on several levels. If employers only ramp up their scrutiny of employees, they will make employees even more reluctant to get assistance, so it is critical to begin by educating employees and encouraging them to seek help. A company wellness program, for example, can be used to develop effective messages about depression and other illnesses in the workplace. Then, companies must provide specific management training to accompany increased employer involvement.

Education and Outreach

The first step in education is distinguishing between depression and a lack of work ethic. Remember that clinical depression is a disease with recognized effects—employers should not demonize employees who admit to experiencing these problems. Considering that one in five employees may be suffering from mood disorders, they are certainly not weird or alone. Both men and women suffer from depression and, for various reasons, may not want to disclose having the condition. Getting help early may prevent safety issues and any subsequent legal dilemmas, so it is important to determine how to effectively convince employees to use the employee assistance program or seek medical care proactively.

Establishing Standards

If depression is treated as a disability condition under the ADA, the condition does not disqualify an individual from employment unless it prevents him or her from performing the essential functions of the job or presents a direct threat to safety. Employers cannot just decide that an employee is unsafe because they use antidepressants or obtain counseling.

Some industries are better equipped to make such assessments. The Department of Transportation, for example, has established broad prohibitions of truck drivers, pilots and other workers operating vehicles if they have certain medical conditions or take specific medications. The DOT also maintains hundreds of pages of guidance for medical providers. These Physical Qualification Standards might not meet the ADA requirement to prove a direct threat to safety or inability to perform the essential functions of the job, but they do not have to: DOT standards trump ADA analysis.

The problem is that the standards only apply to these regulated jobs. They do not apply to forklift drivers, crane operators, salespeople driving company vehicles or workers running other potentially hazardous machinery. Although the hazards may be as severe as those presented by DOT-regulated work, the employer must prove the direct threat or inability to perform the essential functions of the job. This effort may be hampered by the fact that the employee can still get a driver’s license or that their physicians may want to keep patients in the mainstream.

Weighing the Risks

One outcome of the Germanwings crash may be that employers will decide to weigh the risk of a costly ADA claim against that of a catastrophic loss resulting from an incident caused by a troubled employee. As a result, they may intervene more frequently when employees manifest symptoms of mental illness in the workplace.

In such cases, there are ways to assist in managing the risks before a problem occurs. Always start by focusing on performance and behavior. Do not allow unacceptable behavior to get to a point where it appears to be related to illness. If performance problems do get that far, it may take a serious toll in the workplace, including lowering productivity and employee morale. Further, do not let supervisors make knee-jerk decisions: Analyze the situation and get legal advice.

If employers believe that an employee may be suffering from a mental illness, they have to consider whether the illness affects the performance of essential job functions and what the risk exposure could be for coworkers and the public. There are no easy solutions to these issues, but it is important to objectively analyze the situation before taking action to best mitigate the risks to all involved.

 
Howard Mavity

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About the Author

Howard Mavity is a partner with a national labor and employment law firm Fisher & Phillips LLP, where he founded and co-chairs the firm’s workplace safety and catastrophe management practice group.

 
 

1 Comment

  • What can you do as an employee who's supervisor is showing signs of mental illness and is becoming not only uncomfortable but fearful of a psychotic event as well? The supervisor's boss (owner) has turned the other cheek fearing legal issues…..

     
 

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