By: Scott M. Lepak, Attorney Barna, Guzy & Steffen, Ltd. (763) - PowerPoint PPT Presentation

By: Scott M. Lepak, Attorney Barna, Guzy & Steffen, Ltd. (763) 783-5129 slepak@bgs.com

Mental health issues in the workplace present significant legal and practical issues. This session will focus on these management techniques:  How to identify a mental health issue;  How to address a mental health issue from a performance and discipline perspective; and  How to minimize liability and litigation risks.

 Pre Americans with Disabilities Act  “Screwy” behavior = discipline if it irritated the boss  What is “screwy “depended upon the boss.  Not wearing bell bottoms/going to the disco made you odd?  Not knowing who shot JR or who JR was made you soft in the head?  Being in management was sort of fun.  Not so much fun if you were the employee.

 The Americans With Disabilities Act (ADA) was enacted in 1990  Protected disabilities include an individual with a mental impairment who meets one of three definitions:  The impairment substantially limits one or more major life activities of an individual  Has a record of such impairment; or  Is regarded as having such an impairment  Simply being a jerk is not a disability

 You don’t have to be an ace detective under the ADA  Employer ADA obligations typically are triggered by an employee’s disclosed mental illness and request for accommodation  Once the Employer has reason to know the employee has a mental health disability, it requires the Employer to discuss reasonable accommodations  What does that mean? Don’t look too hard for a mental illness if you don’t have to …

 Conduct vs. Condition.  The general rule of thumb is don’t look for condition if you can act based solely on conduct.  Figuring out a condition is hard.  Designating a condition is not the employer’s decision  The employer has no control over the designation  A condition that falls within the ADA triggers a reasonable accommodation review obligation.  Conduct is easier.  Was it a violation of rule or policy?  WHAM, who is next?

 Performance vs. Condition Same general rule of thumb - don’t look for  condition if you can act based solely on performance. Addressing a matter as a performance issue is even  better than conduct because it steers clear of limitations on discipline. Upon identifying a performance issue with an  employee, the employee may raise condition as an element that needs to be addressed.

 Sometimes you can’t/shouldn’t steer clear of considering condition.  Some employee issues need to be addressed that don’t cleanly fall within disciplinary conduct or work performance issues.  The source of these issues appear to be the employee’s condition.  Defining what that condition is becomes the first step.  Deciding how to address the condition in the workplace is the second step

 The primary tool for identifying a mental health issue is a Fitness for Duty examination.  Fitness for Duty examinations occur in two broad categories:  Non-FMLA instances; and  FMLA instances

 Condition related inquiries that do not arise out of a Family and Medical Act situation include a management right to require that the employee undergo a Fitness for Duty Examination.  Such a management order is subject to challenge by a union as to whether there was sufficient cause to require the FFDE. Hill v. City of Winona, 454 N.W.2d 659 (Minn. App. 1990).  This management order is subject to the ADA

The ADA rules allow companies the ability to make sure that their employees are able to fully perform their essential job functions. In the context of a fitness for duty examination, this requirement highlights the need to meet the following standards: (1) objective evidence that the employee may be unable to  safely or effectively perform a defined job; and (2) a reasonable basis for believing that the cause may be  attributable to physical or psychological factors. The central purpose of a FFDE is to determine whether the employee is able to safely and effectively perform his or her essential job functions

 The ADA focuses on insuring employees are judged only on their ability to perform their specific job. This includes a FFDE  An exam and inquiries are not permitted if an employee has a disability that is not job-related and consistent with business necessity.

 The Fitness for Duty Examination is conducted by a professional identified by the Employer.  Pursuant to the Hill v. City of Winona case, a Union has the right to challenge the professional who is selected.  This limited union right is typically addressed by identifying three professionals and allowing the employee to select one.

 An employee who refuses to undergo a FFDE evaluation may be viewed as insubordinate and subject to discipline.  This is subject to the right of the union to challenge the order as noted in Hill before the examination takes place.  In Johnson v. County of Hennepin, 1998 WL 865677, the employee was discharged after refusing to take a FFDE, not going to work for an entire month, and refusing to sign a medical release.

 The Fitness for Duty Examination results in a report to the Employer. This is the first step in the process  That report forms the basis of the Employer’s next step - deciding how to address the condition in the workplace.  If the evaluation determines there are no employment concerns, the matter ends at that point.  If the evaluation identifies limitations, it then becomes a “reasonable accommodation” issue under the ADA.

The 2009 FMLA regulations created a massive change in how employers approach fitness for duty examinations in instances involving FMLA leaves. employees returning from FMLA cannot be required to submit to  a fitness for duty examination unless the employer indicates that this will be required in the designation of leave form (form WH- 382). The fitness for duty examination must be through the employee's  health care provider.

Certification can only be required if the FMLA was for the  employee’s own serious health condition that made the employee unable to perform the employee's job. Section 825.312  In this instance, an employer may have a uniformly-applied policy or practice that requires all similarly-situated employees ( i.e., same occupation, same serious health condition) who take leave for such conditions to obtain and present certification from the employee's health care provider that the employee is able to resume work.  The employee has the same obligations to participate and cooperate) in the fitness-for-duty certification process as in the initial FMLA certification process.

 An employer may seek a fitness-for-duty certification only with regard to the particular health condition that caused the employee's need for FMLA leave.  The certification from the employee's health care provider must certify that the employee is able to resume work.

 Additionally, an employer may require that the certification specifically address the employee's ability to perform the essential functions of the employee's job.  In order to require such a certification, an employer must provide an employee with a list of the essential functions of the employee's job no later than with the designation notice required by §825.300(d); and  The employer must indicate in the designation notice that the certification must address the employee's ability to perform those essential functions.

- If the employer satisfies these requirements, the employee's health care provider must certify that the employee can perform the identified essential functions of his or her job.

 Following the procedures set forth above, the employer may contact the employee's health care provider for purposes of clarifying and authenticating the fitness-for- duty certification.  Clarification may be requested only for the serious health condition for which FMLA leave was taken.  The employer may not delay the employee's return to work while contact with the health care provider is being made.  No second or third opinions on a fitness-for-duty certification may be required.

 An employer may delay restoration to employment until an employee submits a required fitness-for-duty certification unless the employer has failed to provide the notice required in paragraph (d) of this section.  If an employer provides the notice required, an employee who does not provide a fitness-for-duty certification or request additional FMLA leave is no longer entitled to reinstatement under the FMLA. See §825.313(d).

An employer is not entitled to a certification of fitness to return to duty for each absence taken on an intermittent or reduced leave schedule.  Exception. An employer is entitled to a certification of fitness to return to duty for such absences up to once every 30 days if reasonable safety concerns exist regarding the employee's ability to perform his or her duties, based on the serious health condition for which the employee took such leave.  Reasonable safety concerns means a reasonable belief of significant risk of harm to the individual employee or others.  In determining whether reasonable safety concerns exist, an employer should consider the nature and severity of the potential harm and the likelihood that potential harm will occur.