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Americans with Disabilities Act

Between 2007 and 2012, the number of complaints filed with the EEOC increased by more than 50%, with the second most common disability claim under the ADA involving a psychiatric illness. In fact, mental impairments account for 11.7% of the ADA claims and include depression, anxiety, post-traumatic stress disorder and bipolar disorder.

Anxiety disorders, in particular, are exceedingly common. Although most people who develop an anxiety disorder feel alone, frightened and – all too often – “crazy,” the reality is that anxiety disorders are the most commonly experienced mental illness. Forty million people in the United States – 18% of the adult population – experience an anxiety disorder at some point in their lives.

Symptoms can range from a chronic sense of worry and tension to unwanted and intrusive obsessions and compulsions to spontaneous bursts of severe anxiety with accompanying physical sensations such as a racing heart or shortness of breath. Some sufferers can pinpoint the source of their anxiety; for others, it remains a mystery.

Bringing Anxiety to Work

One of the most frustrating aspects of many anxiety disorders is the unpredictability of their symptoms. For sufferers, this can feel like perpetually waiting for the other shoe to drop. For the employer, whose business depends on predictable and consistent performance and attendance, it can be disruptive and frustrating as well.

However, most anxiety sufferers perform well at work. Many do not need accommodations at all, having learned ways to cope with their anxiety symptoms through trial and error, treatment, or a combination of both. Others require minimal assistance, i.e., a short-term flexible schedule to adjust to a new medication or an organized supervision style with regular meetings, clear assignments, and advance notice of unexpected changes. In fact, given the prevalence of anxiety disorders, it is highly likely that you have a coworker who successfully manages symptoms that no one s/he works with is aware of.

Just Give Me More (and More) Time

Much less frequent is the employee who uses his or her diagnosis to create more favorable (or convenient) work conditions. This is the employee, for example, whose use of intermittent leave routinely happens on a Friday or around a holiday, or who routinely requests a change of supervisor because his current one makes him nervous (While a change in supervision style can be a reasonable, and often effective accommodation, a change in supervisor may not be).

The best way to eliminate these situations is to a) have a clear absenteeism policy with call-in guidelines; b) track absenteeism patterns and, during medical certification, include any unusual pattern with the employee’s job description and ask the physician whether the employee’s diagnosis would create this pattern, and c) make sure job descriptions clearly outline interpersonal expectations (such as getting along with peers and managers) as essential job functions.

Don’t Worry; I’m (Trying to Be) Happy

Then there’s the flip side; the employee who keeps insisting she’s fine when she’s not. This is the employee who keeps coming to work even though she repeatedly falls apart, seeks out several coworkers to help her, and has to be taken by ambulance to the emergency room. Whether it’s because she’s fearful of losing her job if she takes time off, or in denial about the seriousness of her symptoms, she just doesn’t seem to grasp the limitations that she currently has.

In this situation, a first step is to encourage her to get the help she needs. Consider open questions that will encourage an employee to request support or accommodation. At the same time, remember that your job is not to probe into an employee’s personal life, to diagnose a problem, or to act as their counselor (It’s possible to have a conversation about this without ever mentioning the word “anxiety” or “mental illness,” i.e., by focusing on her behavior at work and the impact it is having on the people she works with.)

Make available whatever company resources you have to assist her. If she decides to pursue FMLA, make sure you provide the doctor with a copy of the job description and the employee’s attendance record; as many as one out of every three anxiety disorder sufferers also have a substance abuse problem and a Friday/Monday pattern of absences may be an indicator. You might also want to ask for a very specific return-to-work note.

The Bottom Line

Invisible disabilities like anxiety can’t be seen but they are surely felt – by the sufferer as well as those around him/her. Fortunately, they are also highly treatable; in fact, all of us work with individuals who have successfully dealt with anxiety or depression. With a little flexibility and adequate resources, employers can help anxious employees return to a more productive and happy state by focusing on whether and how they can accommodate them rather than whether or not a certain medical condition is a disability.

Companies also better take a second look at their job descriptions and address, where appropriate, the emotional stamina requirements of a job. This is important because, under the law, employers do not have to eliminate essential requirements, only how they are performed. If a job requires the ability to work long hours or with little supervision, make it clear. Not only will this provide some legal protection, it can help applicants who aren’t able to meet these demands to opt out before they fail.

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.

In part 1 on suicide in the workplace, we talked about the employee who is either threatening suicide or thinking about. Now let’s take a look at what to do when the worst case scenario actually happens.

Our Employee Tried It

Scenario 3: You come in to work Monday morning to find a telephone message on your desk from the spouse of one of your employees. When you call her, she tells you that her husband, your employee, has been hospitalized over the weekend following a suicide attempt. You are stunned; not only did you have no idea this employee was in trouble, he was the last person you would ever think would attempt to take his life.

First, let’s take a look at this from a psychological perspective. If it becomes known that an employee has attempted suicide (and word almost always gets around, although, hopefully, not from you), coworkers may feel awkward or embarrassed because they don’t know what to say or how to act. However, avoiding the person or refusing to acknowledge the incident only makes matters worse. The returning employee also doesn’t want:

  • for someone to change to subject if s/he brings it up
  • to be given a pep talk
  • to be given a lecture, sermon, or put on a guilt trip
  • to be patronized, criticized or treated with kid gloves

If other employees ask you how to respond, encourage them to cue off the returning employee. If the employee brings up what happened, coworkers can offer valuable reassurance, respect and support. If the employee doesn’t, encourage coworkers to respect his/her privacy and not succumb to natural curiosity (why did you try it? how did you feel when you woke up? didn’t you think about your family?)

From an administrative perspective, of course, you need to make sure the employee is ready to return to work and able to complete the essential functions of the job. Work closely with the doctor’s office and spouse by writing the doctor, attach a job description (with ADA requirements needed to do the job), and let them know the environment and EVERYTHING and ANYTHING else that this employee may be exposed to and ask him if he/she is capable of performing the essential functions of the position.

If this person requires additional supervision or assignment of someone else to work along side this individual just to protect himself and other employees, this might be considered a hardship on the business as far as ADA is concerned. Working closely with the physician will help you decide on options like STD or LTD, further accomodation like light duty or putting in another area or position, personal leave until the person gets better.

All in all the study indicates that twice as many suicides among men can be ascribed to the “contagious effect” of the workplace than to that of the family.

Grieving at the Office

Scenario 4: This afternoon you will be attending the funeral of one of your outstanding employees, who, after attending a morning of training last week (during which everyone said he acted normal), went home during lunch and apparently took his own life. He joked with co-workers, asked questions, and took notes, leaving his books open and ready for the afternoon session. This employee was very popular with his coworkers and manager and everyone is virtually paralyzed by his death. In addition, there has been a lot of second guessing about what warning signs people may have missed or overlooked.

People develop close relationships in the workplace and the death of colleague can be as devastating as the death of a family member. In fact, a recent study found that, just as a suicide in the family increases the risk of another in the same family, men’s suicide risk increases if they have had one or more work mates who had killed themselves in the last year. In fact, this study indicates that twice as many suicides among men can be ascribed to the “contagious effect” of the workplace than to that of the family. That reason alone justifies encouraging employees to access your EAP if they would like to.

Second, while it is always good to educate your workers about the warning signs of suicide and depression, discourage employees from trying to second guess for what they might have missed. There are no easy answers. There are no simple answers. There are no single answers. Simply, there are no answers.

Part of the healing process is following the same rituals you would after any other death. Encourage employees to do whatever they would normally do to acknowledge a death. You should do the same. For example, if you would tell Mary on Sunday that you sure do miss John who died of cancer, you should tell her the same thing on Sunday if he died in this manner. Finally, no matter how tempted, don’t ask surviving family members to hypothesize about what happened. They’ll have a lifetime to ask themselves those questions without answers and they sure don’t need to try to answer them for anyone else.

The Bottom Line

Jeannette Walls once said, “When people kill themselves, they think they’re ending the pain, but all they’re doing is passing it on to those they leave behind.” HR professionals can’t prevent surviving work colleagues from grieving, but we can help them heal.