Posts Tagged FMLA
International Day of Persons with Disabilities and the ADA: The Legal Side of Psychological Wellbeing at Work
December 3rd is International Day of Persons with Disabilities, and this year’s theme is “Transformation towards a sustainable and resilient society for all”. Transforming workplaces so that they foster resilience among all employees is a worthy goal – one that both MINES and I share with real passion.
Fortunately, most employers now generally understand the links between employee mental health, productivity, absenteeism, and turnover. This is real progress. Unfortunately, only 15% of supervisors and managers are actually trained in how to recognize and respond to employees who may be struggling. This is a problem that MINES and I are taking steps to remedy through our work with our clients and by offering training and consultations to supporters of campaigns like Colorado Mental Wellness Network’s Mental Health Equality at Work.
Employers do not generally associate the Americans with Disabilities Act and Family Medical Leave Act with psychological or mood-related conditions. This knowledge deficit can be problematic because more often than not an employee will reach a point of crisis before exploring potential job accommodations. By that time, it is often too late to save the employment relationship and everybody loses.
This common pattern of “waiting until a crisis” may partly explain the recent surge in depression-related employment discrimination claims filed with the EEOC. These filings increased by 56% between 2003 and 2013, and the EEOC issued written guidance for employees with mental health conditions, as well as their health care providers, for the first time in December 2016.2016
I train supervisors, managers, and HR staff in how to create psychologically healthy workplaces, how to use accommodations as everyday management tools, and how to comply with the ADA and FMLA. Managers are always happy to learn about low- or no-cost accommodation tools they can use right away, instead of making their employees wait for a crisis to occur before requesting them. And, they are relieved to learn that the ADA does not require the elimination of essential functions – a common yet erroneous assumption.
One of the areas I partner with MINES on is training supervisors how to have the early conversation with employees who may be struggling. This is a skill that does not come naturally to most of us – managers don’t want to pry, say the wrong thing, violate an employee’s privacy, play the role of therapist, or step over a legal line of which they’re unaware. MINES personnel have truly mastered this skill over the years.
Another exciting area of partnership with MINES is providing highly specialized mediation and case management services for the toughest ADA and/or FMLA cases involving mental health conditions. Most ADA requests are not challenging to manage. However, some cases are so complex they require the expertise of seasoned psychologists to provide case management guidance and support. Examples include rare diagnoses, some types of personality disorders, and difficulty in finding the right medication or treatment plan. MINES plays an indispensable role in guiding these cases to a sustainable path forward for both the employee and employer.
Lastly, MINES and I collaborate in providing outsourced disability and absence management services nationwide. When we take on this role for our clients, we are truly in the best position to transform workplaces to foster resilience among all employees.
In closing, I hope everyone will celebrate International Day of Persons with Disabilities with us, by taking proactive steps to accommodate employees at all levels of cognitive, emotional, and social functioning.
To Your Wellbeing,
Judge (Ret.) Mary McClatchey
Psychology of Performance #55: The Role of ADA, FMLA, Mental Health Accommodations and Employee Performance
Employee work performance can be impacted and/or affected by numerous variables. This blog focuses specifically on the Americans with Disabilities Act and the implications for employer accommodations for those with mental health diagnoses. There is still stigma and urban myth regarding employees with mental health diagnoses which lead to a number of problems for employees and employers alike. Employers may not understand that an employee with a mental health diagnosis needs an accommodation, much less what that accommodation might be. Whether the employer understands this or not, the employer is legally obligated, unless it poses an undue hardship, to accommodate the employee so the employee can perform optimally. This blog does not address the myriad legal issues associated with the ADA and mental health accommodations. It focuses on providing a context for the complexity of mental health diagnoses and the need for understanding each employee’s needs and how the accommodation will enhance their work performance.
How does the employer determine what is a reasonable accommodation for a mental health ADA request?
This is particularly difficult given the variance in a diagnosis, much less across diagnoses. There are cognitive considerations, interpersonal considerations, physical space considerations, energy restoration elements, work group dynamics, HIPAA privacy concerns, employer limits on what can be requested and asked, threat to the individual’s health as well as to others.
In addition, how does the employer manage FMLA requests related to mental health illnesses?
- What amounts of time are appropriate to be out of work?
- What is the treatment plan to get back to work?
- Does the employer have the expertise to even begin to evaluate the requests?
Psychological Assessment of Functioning and Performance
The array of broad psychological diagnostic categories that may require accommodations is large. The following broad categories include: depressive disorders, bipolar disorders, anxiety, obsessive-compulsive spectrum, trauma and stressor-related disorders, sleep wake disorders, dissociative disorders, mood disorders, neurocognitive disorders, personality and personality disorders, schizophrenia spectrum and other psychotic disorders, eating disorders, substance related disorders, and a number of others. Each of these may have specific symptoms of a particular intensity, frequency, or duration that may require an accommodation. For the purpose of this blog, depressive disorders will be the focus of discussion.
- Depressive Disorders “include disruptive mood dysregulation disorder, major depressive disorder (including major depressive episode), persistent depressive disorder, (dysthymia), premenstrual dysphoric disorder, substance/medication-induced depressive disorder, depressive disorder due to another medical condition, other specified depressive disorder, and unspecified depressive disorder” (p. 155, DSM-5)
- The assessment must be related to job function. For example, in the case of depression, accommodations could be coming in later due to the impact of medication or because an early morning depressive feature gets better throughout the day; a nap that is medication related or sleep related; tools to improve cognitive functioning, which can be affected by depression (such as memory, concentration, complex problem solving) such as memory aids, quality assurance reviews. An accommodation may also be needed for time to see a psychologist, therapist, or psychiatrist.
- Second opinions for ADA accommodation requests. It may be the case that a mental health professional signs a letter asking for an accommodation without any idea of the specific job functions that the employee is asking to be accommodated for. An employer should send the accommodation request back to the mental health professional with the job description and ask what accommodations may allow the employee to do the essential functions of the job. Accommodations may need to be permanent or just temporary while the employee heals.
Intense and/or Complex Case Management for Absence Management
Human Resources and management in all likelihood do not have the time or expertise to manage these types of accommodation requests or absence requests. Providing case management expertise to support the employee in getting good care and returning to work can expedite the entire process. The following are considerations for case management.
- Intensive case management for all cases that have either a primary psychological diagnosis or co-morbid psychological diagnosis.
- Adherence and relapse considerations related to treatment and return to work are central to this approach.
- Communication among all providers, the employer, and the employee/employee’s family is essential for a timely return to work.
- When the employee returns to work, what, if any, accommodations will be needed? In the area of psychological diagnosis, each case stands on its own merits related to frequency, intensity, and duration of symptoms. For example, a diagnosis of depression can range from mild to severe/treatment resistant. There are no cookie cutter accommodations that can be applied across the board. This is where consultation with the case manager, the provider, and the employer is crucial for the success of the employee and the department the employee is returning to.
Psychological Considerations in ADA and FMLA Accommodation Requests
- What psychological functioning needs accommodation?
- How many ways can this accommodation occur?
- What is the impact of the accommodation on the work group/coworkers?
- How best can this be addressed with the work group so everyone understands and is on the same page without violating the employee’s privacy?
- Who best can assess the accommodation needs?
Psychologists, Psychiatrists & Other Mental Health Professionals
- What are their methods?
- What is the validity and reliability of their methods?
- Do they assess the workplace as well or just rely on employee self-report?
Common barriers to carrying out this type of intense/complex case management and accommodation process
- Timeliness of communication between the professional parties.
- Assessment methodology of treating professional.
- Adequacy of the treatment plan.
- Vested interest by the employee not to get better if it is possible with their condition. Getting the releases of information in a timely manner.
Ways to overcome barriers
- Have HR get the releases of information signed when the accommodation request or leave request comes in.
- The case manager needs to join with the provider in a collaborative manner rather than an adversarial manner with the best interests of the employee and employer in mind. This can be communicated up front with the provider to ensure timely communication.
- The case manager can ask for skill based assessment information. If the provider is not able to do so, second opinions should be sought out to allow for a more informed decision process related to the accommodation. The point of the accommodation is to optimize the employee’s success on the job.
- If the condition is one that should show improvement with treatment and the employee is not getting better, the case manager needs to address this with the provider and determine if it is the correct treatment. Are there secondary gains for the employee to maintain the accommodations (e.g., working from home rather than commuting in when everyone else in the work group works at the office)?
- If the case manager reviews the treatment plan and it does not look adequate, the case manager needs to confer with the provider to determine if the provider is able to enhance the treatment plans in a manner that more objectively show improvement and return the employee to work in a timely manner. The guideline is the longer employees are out of work, the lower the probability they will return to work.
The ADA allows employers to retain employees who work for them and can perform at high levels with some accommodations. There are several elements that need to be taken into account that when put into place help the employee to perform well, be self-sufficient, and contribute to the prosperity of the employer organization as well as their community.
Have a day filled with loving kindness and compassion,
Robert A. Mines, Ph.D., CEO & Psychologist