DON’T ASK, DON’T TELL AND THE LAW ON INVISIBLE DISABILITY DISCLOSURE

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Reports of the Germanwings plane crash, a tragedy caused by a pilot with a history of depression, have sparked discussion regarding mental health issues in the workplace.  

Untreated mental illness raises workplace safety concerns.  It’s particularly troubling in fields such as aviation, medicine and law in which employees are responsible for others’ lives.

For employers, detecting this unseen danger is problematic. Federal and state anti-discrimination laws that regulate their ability to ask medical questions curb the scope of permissible inquiry. The stigma associated with mental illness, which may imperil a worker’s career, deters disclosure and treatment.

Bloomberg BNA interviewed Katharine H. Parker, management attorney and partner in Proskauer Rose LLP’s Labor & Employment Law Department, on compliance with various laws governing disability-related inquiries and medical examinations of employees.

Bloomberg BNA: What can employers do to identify at risk workers under federal law? 

Parker: Various laws, including the Americans with Disabilities Act, restrict the extent to which an employer can make medical inquiries about employees.  Under federal law, all medical inquiries need to be job related and consistent with business necessity.  Under applicable guidance from the Equal Employment Opportunity Commission, this standard can be met when an employer “knows about an employee’s medical condition, has observed performance problems, and reasonably can attribute the problems to the medical condition.”

Additionally, when an employer has a reasonable belief that an employee poses a direct threat to himself or herself or others, an employer may require an employee to be examined by a health-care professional.  The exam must be limited to ascertaining whether the employee can perform his or her job without posing a direct threat. 

For safety sensitive positions, e.g., pilots, firefighters and police, an employer can require periodic medical examinations. 

Finally, an employer may be required to conduct periodic medical exams under the Occupational Safety and Health Act, other laws that require employees exposed to toxic or hazardous substances to be medically monitored at specific intervals and the Federal Mine Health and Safety Act.  In other words, what an employer can do depends on its business, the position at issue and the facts and circumstances of a particular situation.

Bloomberg BNA: In professions that directly impact public safety, do employers have greater leeway to make disability-related inquiries to ensure fitness to perform?  

Parker: Yes.  In fact, in some such positions employers are required to conduct periodic medical exams.

Bloomberg BNA: When mental health impairments are exposed, what obligations do employers have to intervene and/or to accommodate?  

Parker: Under federal law, employers have a duty to reasonably accommodate individuals with disabilities unless doing so would be an undue hardship on the employer.  In general, employees are expected to affirmatively request an accommodation; however, in some situations, where a disability is obvious and the need for an accommodation is obvious, an employer may be permitted to initiate a discussion about reasonable accommodation. 

To what extent an accommodation is reasonable is an individualized inquiry based on the particular facts—the employee’s position, the nature of the disability and work limitations, the size and financial wherewithal of the employer, the impact of a potential accommodation on others, etc.  If an employer has a reasonable belief that an employee poses a direct threat, the employer may place the employee on leave or terminate the employee’s employment. 

Bloomberg BNA: What are some potential workplace accommodations?

Parker: There are hundreds of potential accommodations.  Some are low cost and potentially easy to provide, such as better lighting, installation of software on a computer, providing an unpaid leave of absence for a reasonable amount of time, removing non-essential functions from a job or changing an employee’s schedule.  Others are more involved and not likely to be reasonable except in rare situations, such as allowing an employee to telecommute.

Bloomberg BNA: What are some general guidelines for crafting return-to-work policies post treatment?

Parker: Various laws provide leaves of absence for employees with a short-term disability.  The Family and Medical Leave Act also specifies rules about return to work and the extent to which an employer may request a fitness for duty certification when leave is taken pursuant to that statute. 

Bloomberg BNA: Where can employers obtain additional information about mental health disabilities and training materials for supervisory personnel?

Parker: There are very good resources on the Job Accommodation Network’s and the EEOC’s websites. 

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