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Dealing with mental illness in the workplace

The story of "Jane" illustrates key issues

No snappy headline for this post. This is a serious problem facing many managers and HR professionals in banking today. I have found, in trying to advise them, that the law provides an inadequate guide to handling the situation. It takes patience, persistence, and, above all, compassion to reach a resolution.

Case Study: How to help Jane

Let's work through a hypothetical situation to see what you can and cannot do.

Jane is a loan processor. She has worked for the bank for ten years. She works in an open office area with three other women. Lately, her performance has deteriorated and she has missed a lot of work.

Two months ago she complained to the HR manager that the women who work in her area were whispering about her, saying that she was fat and smelled bad. The HR manager noted no personal hygiene problems with Jane, who is not overweight, and undertook a discreet investigation. First she spoke to Jane's supervisor. Then she had the supervisor make some inquiries to her co-workers, protecting Jane's identity. They could find no substantiation for Jane's claim of harassment. The HR manager reported her findings back to Jane, who insisted that the other women continued to whisper about her "all the time." She said that they had even substituted a chair that creaked when she sat down in it for her usual one.

In this meeting, the HR manager raised the possibility of changing Jane's work station, but Jane became very agitated and confided for the first time that she was seeing a therapist for stress and was on medication. She said the ongoing and pervasive whispering campaign was worsening her condition, and she just wanted to stay home. However, she had exhausted her paid time off.

Next steps: Probing deeper

Kudos to the HR manager for taking Jane's initial complaint at face value and investigating it promptly, discreetly, and thoroughly. Never assume a complaint is ridiculous or imaginary, or try to diagnose an employee's mental health--leave that to the experts.

Now that Jane has volunteered her mental health issue ("stress") and asked for an accommodation ("to stay home"), the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA) come into play assuming the bank has more than 50 employees.

The ADA (as amended in 2008) covers almost all physical and mental impairments. It requires the employer to engage in an interactive process with the employee and his/her healthcare provider to determine an appropriate accommodation which will allow the employee to continue to perform the essential functions of the job.

Time off from work might be an appropriate accommodation. But don't leap at what looks like an easy option without exploring alternatives through the interactive process first.

Medical information is essential

Key to this process is obtaining accurate and specific information from the employee's healthcare provider.

This is never easy. Doctors are busy people. They are cautious about breaching confidentiality. And they have notoriously bad handwriting. When mental illness is involved, there is often an understandable urge to protect the patient from the stigma and ignorance surrounding the issue in the general population.

Make it easy on the healthcare professional:

• Provide a release signed by the employee. This will require you to actually talk to the employee about their condition. Don't be afraid. Explain that you need the information so that you can support them in their job.

• Enclose a copy of the job description. This should be detailed enough about work environment and requirements that the healthcare professional can assess how performance might be affected by the patient's condition.
 
• Use a standard "accommodation assessment" form. This will enable you to obtain information on diagnosis, prognosis, medication and side effects.

Sometimes, just the act of connecting employer, employee, and mental health professional can be helpful. Perhaps the employee has stopped taking medication, unknown to his doctor, or perhaps the doctor was unaware of the demands of the patient's job when prescribing a particular treatment. Finding a way to help someone with mental illness stay productive in the workplace is a three-way effort.

Is a "time out" what Jane needs?

Returning to our hypothetical situation, let's say that interaction between Jane, her therapist, and the HR manager led to an agreement that Jane needed some time off work while her medications were adjusted. Let's also assume that the bank's policies reflect the FMLA.

Jane is entitled to up to 12 weeks off per year for her own "serious health condition." She must give adequate notice of her need for time off; in an emergency, notice must accord with the bank's call-in procedures. The bank is entitled to seek medical certification of the "serious health condition." So far, in Jane's case, the FMLA and the ADA overlap.

As long as it is established that the reason for the leave meets one of several identified in the law, the FMLA is essentially about tracking time off. Once the maximum time off is exceeded, the employee is not guaranteed a return to work. FMLA leave doesn't have to be paid time off, and the employer is not required to make an accommodation to speed the employee's return. Jane has already used up a portion of her 12-week allowance.

Privacy—essential in all its forms

HIPAA's privacy provisions require that personal health information must be maintained in strict confidentiality. Putting locks on the HR filing cabinet, and changing the password on computer files is the least of it. Gossip, even well-intentioned expressions of concern, should be firmly squashed.

This is especially important where the subject is an individual's mental health. It is helpful to develop a standard response, for example:

"So-and-so is off work for medical reasons of a personal nature."

Coach supervisors and co-workers to rely on this formula to deflect all inquiries.

A holistic approach balances the interests

Out of sight, out of mind. Jane is on disability leave. Everyone breathes a sigh of relief.

But is this problem solved?

Probably not.

I advocate continuing communication with the employee and the mental health professional to monitor the situation on a bi-weekly or monthly basis. This ongoing support will be helpful to Jane. Her condition may have isolated her. Communication will assure her that she still has a workplace connection.

As FMLA leave approaches expiration, the HR manager can make an informed decision about whether to extend the leave for a further definite period, if requested. Revisit the accommodation discussion: Is there another job at the bank, perhaps a part-time position, that Jane could do, even if she's not well enough to return to her old job?

An evolving understanding of mental health issues

In May, a new edition of the Diagnostic and Statistical Manual of Mental Disorders was published. Some disorders described in previous editions were removed; others were redefined. As the professionals struggle to develop a clearer understanding of the field, stigma bred of ignorance and fear still stalks the workplace.

The ADA, FMLA, and HIPAA provide a few tools to guide the handling of an employee's mental illness. A thoughtful manager will call on more intuitive knowledge-- and simple human kindness.

Marian Exall

Marian Exall (marian.exall@gmail.com) is an employment lawyer and HR professional with more than 25 years' experience advising banks and other employers on compliance issues. She is a principal and co-founder of Employment Law Compliance, Inc. which provides HR compliance solutions to banks exclusively through the American Bankers Association. She is a frequent speaker and writer on human resources compliance in the banking industry, on association briefings and webinars, and at national and state bankers' association conferences. For more information on this or other employment compliance topics, please call Employment Law Compliance at 866-801-6302 or go to www.employlawcompliance.com.

Marian also writes fiction. Her latest novel is a mystery called A Slippery Slope. For more information and to order, go to www.marianexall.com

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