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HR Handled Right

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human resources

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.

Workplace investigations are tough enough without the office grapevine gossiping about who did what to whom. As such, it’s standard practice to ask anyone who participates in an investigation to keep their mouths closed about what is discussed behind the closed doors. A new ruling from the National Labor Relations (NLRB), however, suggests that a blanket “keep your mouth shut” mandate may be improper.

The Case behind the Concern

Like many investigators, the HR director for Banner Heath Systems asked workers involved in an in-house investigation to not talk about the investigation with their co-workers. However, James, one of the employees involved objected that this request violated the rights of employees to discuss the terms and conditions of their employment with their coworkers. The National Labor Relations Board sided with James, saying that blanket requests for confidentiality during an investigation are overly broad and might have a chilling effect on appropriate – and legally protected – communications.

So what’s an Investigator to do?

This is a new ruling (July 30, 2012) and time will tell what this means from a practical standpoint. However, the NLRB’s ruling does offer some guidance. First of all, investigators can still ask witnesses to keep quiet as long as they have a legitimate business interest in making the request. This business interest must extend beyond the usual “we’re trying to protect the integrity of the investigation” reasoning.

So what business interest is legitimate? It is one that arises from that particular investigation. Perhaps, for example, the facts you’ve uncovered so far suggest that the accused might try to intimidate witnesses if s/he learns they will be talking to an investigator. Perhaps you haven’t had a chance to retrieve some valuable evidence and are concerned that, if the investigation leaks out, it might be destroyed before you have a chance to do so. Or perhaps you have reason to believe (again, based on what you’ve uncovered) that a group of witnesses might get together and “get their stories straight” before you have a chance to interview them individually.

In addition, when you do feel requests for privacy are warranted, limit the scope as much as possible. For instance, ask that the witnesses not discuss the investigation as long as it’s active or during work hours or on company property.

The Bottom Line

In every investigation, investigators walk a tightrope, trying to balance a number of competing interests. This recent ruling extends those competing interests to include the need to maintain confidentiality and employees’ rights to discuss the conditions of their employment. For now, the best solution during an investigation is to avoid blanket requests for privacy, articulate valid reasons for privacy requests when they occur, and make sure your requests are as limited as possible.

 

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