CPA_Practice_Advisor_April_2020 - 15

aware that an employee may be
suffering from a mental impairment or disability that is affecting
the workplace through reports
from fellow employees. In most
cases some problem behavior or
incident triggers a concern among
co-workers that something is
amiss with the employee. A major
change in personality, such as from
happy to moody, confrontational
or argumentative behavior and
similar uncharacteristic conduct
may be signs of a problem. On
some occasions the employee's
supervisor may become aware of
a problem when having to respond
to complaints about an incident
involving the employee.
The possibility that a supervisor or manager may encounter an
employee mental health condition
in the workplace underscores the
need for the issue to be addressed
in their employment issues training.
Most companies seek to educate
supervisors and managers regarding the appropriate response to
ADA issues. Basic information on
the proper response to an employee
mental condition should be a part
of work training.
The appropriate response to a
potential mental health issue is to
carefully gather as much information as possible while maintaining
appropriate confidentiality and
medical privacy. A human resources
representative or appropriate
member of management, working
in conjunction with the plant nurse
or a medical practitioner, should
confidentially interview witnesses
to the abnormal conduct.
These are not issues that should
be permitted to become part of
the shop talk. Once confirming
information in the form of objective
evidence of the questionable conduct is obtained, the employer may
question the employee regarding
the condition, if any, that is causing
the problem behavior. Employers

can request disability information
only if it is job-related and consistent with business necessity.
Therefore, there must be a
reasonable basis to believe that the
condition causes the employee to
be unqualified for the job, requires
a reasonable accommodation, or
poses a direct threat to the health
and safety of other employees.
Given the sensitive nature of the
issues, these types of discussions
should occur in private, preferably
including the medical review officer,
plant nurse or safety professional
if possible. It is quite common for
the employee to deny that there is
a problem.
The employer must nonetheless
proceed without being confrontational. It is possible that mere
questions about what could be
causing the employee's behavior
could trigger the problem conduct.

PERMISSIBLE ACTION
If it is determined that the employee's medical (mental) condition is
limiting the employee's ability to
properly perform his/her job or
creating disruptions or safety issues
in the workplace, especially if the
employee denies there is an issue,
the employer may require a fitness
for duty examination. The examination must be "job related and
consistent with business necessity."
A fitness for duty exam would
also be appropriate if it appears that
the employee's mental condition
could pose a danger to the employee
or co-workers. It is precisely in these
circumstances that an established
relationship with a medical clinic
that is familiar with industrial
medicine, and your specific jobs is
most useful.
The medical professional conducting the exam should have available the employee's job description
or at a minimum, the essential job
functions. The employee's personal
physician or medical provider

should be consulted for any input
that may help in performing the
assessment. If the exam does not
totally disqualify the employee
from employment, potential reasonable accommodations should
be discussed with the employee
in conjunction with the medical
professionals involved.
If the employee does not have
an on-going relationship with a personal physician or proper medical
provider, referral to an Employee
Assistance Program might be appropriate. When the interactive process
to address the potential reasonable
accommodations for the condition
occurs, it should focus solely on the
limitations on the ability to perform
the job created by the mental condition and what accommodations
might be available.
In some cases, prescription of
medication or the modification of an
existing medication regimen may
be sufficient. Such action would
obviously involve the employee's
treating health care professional.
In some cases, a job transfer, flexible scheduling, or modified break
schedules, or some similar accommodation that does not create an
undue hardship would permit the
employee to continue working
without symptomatic behavior.
There are some mental conditions that cause an employee to
pose a threat of physical harm to
fellow employees. Such behavior
is sometimes manifested when a
person suffers from a borderline
personality disorder, bipolar
disorder or schizophrenia. If the
employee is not capable of performing the essential functions of their
job without posing a threat to the
safety of themselves or others, even
with reasonable accommodations,
the employer may have no choice
but to terminate the employee.
Taking such action should be rare
and only come after all possible reasonable accommodations have been

APRIL 2020 ■

considered and found unfeasible.
Involvement of the medical professionals would be critical before
reaching a termination decision. A
combination of leave along with a
regimen of appropriate medication
are often the types of reasonable
accommodations recommended
by the treating physicians before a
termination decision is needed. The
ultimate goal and concern should
be the well-being of the employee.
If medically supervised leave, even
for an extended period would enable
the employee to improve and possibly return to work, it could be the
best course of action.

CONCLUSION
Each year employers are confronted
with an increasing number of
interactions where the ADA and/
or FMLA are implicated. It is likely
that some may involve cases of
employee mental illness. The best
course of action for employers is to
be cautious and patient all times in
addressing mental health issues in
the workplace. The issues are highly
personal and can be complex. ■
Richard D. Alaniz, J.D., is a partner at
Alaniz Law & Associates, a labor and
employment firm
based in Houston.
He has been at the
forefront of labor
and employment
law for over forty
years, including
stints with the U.S.
Department of Labor
and the National Labor Relations Board.
Rick is a prolific writer on labor and
employment law and conducts frequent
seminars to client companies and trade
associations across the country. Questions
about this article, or requests to subscribe
to receive Rick's monthly articles, can be
addressed to Rick at (281) 833-2200 or
ralaniz@alaniz-law.com.

www.CPAPracticeAdvisor.com

http://www.CPAPracticeAdvisor.com

CPA_Practice_Advisor_April_2020

Table of Contents for the Digital Edition of CPA_Practice_Advisor_April_2020