SLIDE 1
By: Scott M. Lepak, Attorney Barna, Guzy & Steffen, Ltd. (763) 783-5129 slepak@bgs.com
SLIDE 2 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.
SLIDE 3 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
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.
SLIDE 4
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
SLIDE 5
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 …
SLIDE 6
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?
SLIDE 7
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.
SLIDE 8
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
SLIDE 9
- 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
SLIDE 10 Condition related inquiries that do not arise
- ut 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
SLIDE 11 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
SLIDE 12
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.
SLIDE 13
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.
SLIDE 14
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.
SLIDE 15
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.
SLIDE 16 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.
SLIDE 17
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.
SLIDE 18
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.
SLIDE 19
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.
SLIDE 20
- 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.
SLIDE 21
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.
SLIDE 22
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).
SLIDE 23
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.
SLIDE 24
- If an employer chooses to require a fitness-for-duty certification under
such circumstances, the employer shall inform the employee at the same time it issues the designation notice that for each subsequent instance of intermittent or reduced schedule leave, the employee will be required to submit a fitness-for-duty certification unless one has already been submitted within the past 30 days.
- Alternatively, an employer can set a different interval for
requiring a fitness-for-duty certification as long as it does not exceed once every 30 days and as long as the employer advises the employee of the requirement in advance of the employee taking the intermittent or reduced schedule leave.
SLIDE 25 FFDEs and their resulting actions impact laws other than the ADA, FMLA and PELRA.
The key to resolving the confusion between overlapping laws and agreements is that generally one cannot take away employee rights that have been granted in another.
In other words the higher standard for employee rights must be met.
The only generally accepted exception to this is that when a federal law preempts another rule or regulation, due to national security, or federal contract reporting rules, etc in which case the
- ther laws are forgiven, but only to the extent required to adhere
to the relevant federal preemptive law at hand.
SLIDE 26 The Occupational Safety and Health Act (OSHA) has been invoked in recent years in order to require FFDEs of
- employees. OSHA 29 U.S.C. 654(a) states that each
employer:
(1) shall furnish to each of his employees employment
and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; and
(2) shall comply with occupational safety and health
standards promulgated under this chapter.
SLIDE 27 Essentially, if OSHA 29 U.S.C. 654(a) conflicts with ADA discrimination laws then OSHA may be used as a defense against a discrimination claim. In order to use OSHA as a way to force an employee to take a FFDE where the ADA would not otherwise allow it, the employer must establish a legitimate basis to assert that:
the FFDE was based on the goal of preventing recognized hazards; and
those hazards are causing or are likely to cause death or serious physical harm to employees or compliance with OSHA
- ccupational safety and health standards.
SLIDE 28 The Minnesota Human Rights Act provides at 363A.20,
It is not an unfair employment practice for an employer . . . with the consent of the employee, after employment has commenced, to obtain additional medical information for the purposes mandated by local, state, or federal law; for purposes of assessing the need to reasonably accommodate an employee … or by other legitimate reasons not otherwise prohibited by law; Minnesota Statutes 363A.20 Subd 8(c) requires that if
any medical information adversely affects any hiring, firing, or promotional decision for an employee, the person affected must be told about that information within ten days of the decision.
SLIDE 29 In Brownfield v. The City of Yakima, No. 09-35628
(9th Cir. 2010) the U.S. Court of Appeals for the Ninth Circuit held that an employer may preemptively require a medical examination.
The court was concerned with the following:
it must guard against the potential for employer abuse of
such fitness for duty exams.
Employers may not use medical exams as a pretext to harass
- r fish for non-work-related medical issues; and
the attendant “unwanted exposure of the employee’s
disability and the stigma it may carry.”
SLIDE 30
- It noted that the business necessity standard may be met even before
an employee’s work performance declines in the following circumstance:
if the employer is faced with significant evidence that could
cause a reasonable person to inquire as to whether an employee is still capable of performing his job.
An employee’s behavior cannot be merely annoying or
inefficient to justify an examination; rather, there must be genuine reason to doubt whether that employee can perform job-related functions.
- This case is notable in that the 9th Circuit is generally
viewed as the most liberal of the federal appellate courts.
SLIDE 31
Watson v. City of Miami Beach, 177 F.3d 932, is a case alleging that the city violated the ADA when it relieved Watson with pay pending a FFDE. In order to make a disability claim under 42 U.S.C. 12112(a) an individual first needs to prove they have a disability.
The Court of Appeals held that Watson had not proven he had a mental impairment under the ADA.
He clearly had major personality conflicts with his co-workers, but defensive, oppositional and antagonistic behavior alone does not prove a mental impairment “that substantially limits one or more of the major life activities of such individual” as required by the ADA.
See – the slide at the beginning said that simply being a jerk is not covered by the ADA. Turns out being a jerk may not be sufficient to require someone to submit to a FFDE.
SLIDE 32
Don’t jump into a mental illness matter where the issue can be addressed by focusing on conduct or performance. It is more common to have to address mental illness issues when they are raised by the employee.
A mental illness inquiry creates an ADA situation requiring an interactive process and reasonable accommodation review.
A fitness for duty examination is the key component to a mental illness inquiry. The employer has considerable latitude in non- FMLA settings. In contrast, the employee’s physician largely controls a FFDE in instances involving the FMLA.
The moral of the story - it is not always easy to order an FFDE and act freely upon its result without careful consideration of all the relevant legal implications.
