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HR Handled Right

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A.D.A.

On May 23, 2003, John Ponsi, a teacher at Cliffside Park High School, was unexpectedly called into the principal’s office for a meeting with two students, who accused him of making racial and lewd remarks earlier that week. Another teacher at the same meeting accused Ponsi of pushing her. Four days later, the Board of Education notified Ponsi that he was suspended with pay, pending the outcome of an investigation and psychological examination.

However, no investigation was conducted. Ponsi was referred to a psychiatrist by his physician due to the depression and anxiety resulting from the accusations and suspension. In September 2003, Ponsi was also evaluated by Dr. Meyerhoff, a psychiatrist appointed by the school board, who concluded that Ponsi was unable to teach for the foreseeable future. As a result of that examination, the Board notified Ponsi that he was ineligible to teach until he provided proof of recovery and that, if his absence exceeded two years, his employment would be terminated.

On January 31, 2005, Ponsi’s psychiatrist notified the school in writing that he was ready and able to return to teaching. Not convinced, the Board sent Ponsi back to Dr. Meyerhoff, their psychiatrist, who concluded that, while his mood disorder had abated, he was unfit to return to work because he showed no repentance or remorse over the alleged lewd and racial remarks, or the pushing incident. In essence, the Board’s psychiatrist accepted all the allegations against Mr. Ponsi as true (even though no investigation had been conducted) and, in fact, interpreted Mr. Ponsi’s assertion to the contrary as evidence of paranoid delusions. Concerned, the Board decided not to reinstate Mr. Ponsi.

Why Should I Believe You if You’re “Crazy?”

The true story cited above illustrates one of the challenges (and potential pitfalls) employers face when investigating psychiatric disability discrimination claims. All too often, the stigma of a mental illness clouds how that person is perceived, not only by managers who don’t understand psychiatric disorders but professionals who should know better. In other words, the complaint process itself becomes tainted by the underlying assumption that the complainant, because of his or her mental state, isn’t able to see reality clearly and is thus distorting what happened or misinterpreting the evidence.

Just Go See the Shrink and Get Yourself Straightened Out

Employers can also fall prey to the assumption that a trip to the psychiatrist’s office is all that is needed to get the complainant to see the light. Certainly, there’s nothing wrong with offering up an employer’s EAP to a complainant who is dealing with the inevitable stress that filing a complaint generates. The devil, however, is in the details. Employers need to be clear that their recommendations or suggestions about psychiatric treatment aren’t interpreted as a thinly disguised version of blame-the-potential-victim.

They also need to be sure that the questions they ask in their investigation don’t cross the line into sensitive medical information or stray into unwarranted territory. Asking coworkers if they’ve ever felt that Bipolar Employee X was dangerous is understandable if you’re investigating alleged threats made by this employees; it’s completely inappropriate if you’re investigating complaints of cruel comments or teasing made to this employee.

The Bottom Line

Investigating psychiatric disability harassment or discrimination claims can be especially challenging, although not necessarily for the reason many of us assume they would be. Yes, some employees with psychiatric disabilities can be difficult complainants, but so can employees without a mental illness. In fact, in my experience, it’s the stigma and fear surrounding mental illness that gets in the way of a fair and objective investigation much more often than an irrational or “crazy” complainant.

However, employers must make sure that we are basing our employment decisions on the facts rather than beliefs and opinions, even when those beliefs and/or opinions come from mental health professionals. Employers who substitute professional opinions for investigations do so at their own peril. When you do need professional input, make sure you provide them with accurate and objective information is being provided.

Once, again, we saw a dramatic increase in the number of workplace disability discrimination claims last year. According to the Equal Employment Opportunity Commission (EEOC), the agency received a record 100,000 complaints of disability discrimination in 2010, a 17% increase over the previous year. Employees with mental disabilities are especially vulnerable; according to the U.K. mental health charity Mind, one out of five employees who discloses a mental illness at work ends up without a job.

Employees with intellectual limitations fare no better. A particularly disturbing example is a recent lawsuit against Texas Company Hill Country Farms, who is accused of severely abusing 31 mentally challenged men who worked in their Iowa plant. Among the allegations; verbal abuse, including referring to employees as “dumb-ass, stupid and retarded,” physical abuse including hitting and kicking, and illegally low wages (as low as $65 dollars a month).

Lead Supervisors: First Responders to Disability Claims

While HR continues to bear the brunt of understanding and implementing the new changes and nuances, don’t underestimate the role front line supervisors have in communicating with disabled employees. The attitude and responsiveness of supervisors often determine, more than physical barriers, whether an employee with a disability feels that s/he is being treated fairly. In fact, the words of front line supervisors – both verbal and in careless e-mail — are the single biggest source of evidence that can turn a nuisance claim into a “bet the company” lawsuit.

Americans with Disabilities Act Amendments Act: What Supervisors Need to Know

As with all areas of employment law, you should reinforce to your supervisors that they consult with your HR department or legal counsel for additional information and specifics on company procedure. Here are some additional ADAAA points to consider:

  • When it comes to disability requests, the revised ADA, i.e., the ADAAA, shifts the emphasis from investigating (why or how to accommodate) to what needs to be done.
  • When talking to an employee with a disability, supervisors shouldn’t ask questions about the condition itself. Instead, they should focus on job-related questions about the effect of the condition on the employee’s ability to do the job.
  • The ADAAA requires that accommodation be approached with an open mind (i.e., not begin by questioning the existence of the disability). As before, employers must honor the disabled employee’s medical confidentiality and may not explain to other employees why any resulting change is being made.
  • The supervisor may not be in a position to determine the legitimacy of a request for accommodation without medical input. Thus, employers can require employees to provide documentation from an employee’s health care provider about the disability and the need for accommodation. Supervisors should turn to their human resource professionals as they engage in this process with the employee.
  • Employees asking for an accommodation need not use any particular words and are encouraged to talk directly with their supervisor. Supervisors need to be able to recognize when an accommodation is being requested. Examples of accommodation requests can include references to doctor’s appointments, medical treatment, or specific problems (I’m having difficulty hearing other people on the phone).

For every minute spent preparing, an hour is earned. This is especially true for HR professionals, who not only bear the direct responsibility, but also ensure that those in the line of fire have the backup they need.

I wouldn’t say I loved to fly before I was pregnant with my first child, but it certainly wasn’t a white-knuckle event. Then, during a business trip when I was six months along, we flew into a storm. On the meteorologist’s scale, it was not even close to the perfect storm; I’d been through worse turbulence during my business travels.

However, I was suddenly gripped with a terror I can still recall but not adequately describe. The fear that something bad might happen to my baby quickly erased any rational thoughts from my head – and left me gripping the arm of the poor man sitting next to me and promising myself that if I ever got off that plane I would never, ever fly again.

Employees Lose Out on More than Frequent Flyer Miles

Of course I did. But it took years before I could board a plane without feeling a tightening in my gut and a shortening of my breath. Apparently, I’m not alone.

The fear of flying–or aviaphobia–is more of a problem than you might realize. Twenty-seven percent of USA Todaysurvey respondents said they were at least “somewhat fearful” of flying. Nine 9 percent are terrified of it.

A survey by the American Management Association found that 13 percent of employers reported that a fear of flying had adversely impacted their business. Employees pass up promotions that involve air travel and miss-out-of town meetings, while employers miss out on advancing otherwise stellar employees who could greatly contribute to the bottom line.

What are You So Afraid of?

While the fear of flying may be distinct phobia in itself, it is often a mish mash of different phobias. For example, it may be an indirect manifestation of one or more other phobias, such as claustrophobia (a fear of enclosed spaces) or acrophobia (a fear of heights). It may have other causes as well – a fear of terrorism, of not being in control, of turbulence, of crashing, etc.

It is a symptom rather than a disease, and different causes may bring it about in different individuals. A fear of flying is a level of anxiety so great that it prevents a person from traveling by air, or causes great distress to a person when he or she is compelled to travel by air. The most extreme manifestations can include panic attacks or vomiting at the mere sight or mention of an aircraft or air travel.

Oh, Those Pregnancy Hormones

Fear of flying often begins during pregnancy. We might think it is because of the responsibility for another life – and that’s part of it. However, shortly before delivery, the brain of an expectant mother is flooded with hormones that cause her to become obsessed with safety.

Everything that even remotely looks like a risk has to be controlled or avoided. The hormones go away after delivery, but, unfortunately, the patterns of behavior established by the hormones may continue.

Fear of Flying and the Law

Always consult with your attorney before making any decisions about policies and practices related to mental or physical illnesses. If a company does not make reasonable accommodations for an employee who is truly traumatized by the thought of flying or affected to the point of having a medical issue-such as panic disorder-or to the point where he cannot perform job functions, serious legal issues and obligations under the Family and Medical Leave Act, Americans with Disabilities Act, and/or National Labor Relations Act may apply.

From a practical (and humane) standpoint, seriously consider an employee’s reasonable request for accommodation, such as telecommuting or participating in meetings via teleconference. If such an arrangement does not cause significant disruption to the smooth operation of your business, providing such an option, at least on a temporary basis, may assist employees in getting past a period of anxiety, especially give the fact that some of the typical flight anxiety relievers (Xanax, a few vodkas) aren’t recommended for pregnant women.

If the problem continues after childbirth, you can deal with it then; no one has to accommodate an employee by removing an essential function of her job. But the flexibility you show in the short run is the kind of strategy that costs little – and earns big bucks in terms of employee loyalty.