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Nov 10, 2015

Don't Ask, Don't Tell: Inquiries About An Employee's Health


Category: Employment

November's Central Maine Human Resources Association program will tackle the issue of mental illness and addiction in the workplace. The program takes place on November 17, 2015, from 7:45 a.m. to 9:30 a.m. at the Ramada Inn in Lewiston. This program features the Executive Director of the Maine Human Rights Commission, Amy Sneirson, and members of St. Mary's HR Department, Cindy Cronkhite and Cindy Letourneau. Amy Sneirson will share her years of experience at the helm of the Commission in discussing the top issues facing employers in the area of mental health and addiction, trends on where employers most run into trouble, and how to avoid running afoul of the various laws that apply. Cindy Cronkhite and Cindy Letourneau will follow up with some practical tools to use to assess and respond to such issues and will provide examples of workplace accommodations and resources they have both used.  They will also share examples of their policies and work accommodations created for employees needing support for mental health and substance abuse issues, and what resources are available.

The EEOC, the federal agency overseeing compliance with federal anti-discrimination laws affecting the workplace, has issued "guidance" on the subject of disability-related inquiries and medical examinations of employees. For example, suppose a current employee has been showing up late, has been unable to complete job assignments on a timely basis, and is consistently irritable and unhappy looking. One approach might be to address what you guess to be medical issues causing this behavior and ask, "You seem depressed. Have you had a chance to see a doctor or use our EAP plan?"   Although well-meant, that approach crosses the line between focusing on business necessity and the world of medicine. It also may lead to you hearing medical information that the employee can later claim was the true reason for you ultimately deciding to discipline or terminate them.

The preferred approach would be to focus on whether the person is doing their job or not. Expressing empathy and concern need not involve medical information or comments and can be conveyed while still noting that the employee needs to get to work on time, needs to finish work on a timely basis, and needs to interact with others in a cooperative and pleasant manner. With an employee, an employer may ask medically related questions only if they are "job-related and consistent with business necessity." Thus, instead of asking whether the employee is depressed, whether they are on medication, or whether they have seen their doctor lately, ask whether they are able to show up for work on time or finish the work when needed.

One of the exceptions to the general prohibition on seeking medical information is when the employer has a reasonable belief that the employee has a medical condition that poses a "direct threat." Showing that a "direct threat" exists is no easy task. Part of the message of the Americans with Disabilities Act is that employers may not act based on myths, fears, and assumptions about disabilities. At the same time, employers need to be concerned about the safety of their workplace as a whole and the balancing act is not easy to figure out.

The EEOC has provided some down to earth and practical guidance, at http://www.eeoc.gov/laws/types/intellectual_disabilities.cfm. This guidance provides a number of examples of how to handle the collision between performance and a mental health disability. For example:

When may an employer ask an employee whether her intellectual disability, or some other medical condition, may be causing her performance problems?

Generally, an employer may ask disability-related questions or require an employee to have a medical examination when it knows about a particular employee's medical condition, has observed performance problems, and reasonably believes that the problems are related to a medical condition. At other times, an employer may ask for medical information when it has received reliable information from someone else (for example, a family member or co-worker) indicating that the employee may have a medical condition that is causing performance problems. Often, however, poor job performance is unrelated to a medical condition and generally should be handled in accordance with an employer's existing policies concerning performance.

Example: A mailroom clerk with an intellectual disability and attention deficit disorder who has performed his job successfully for five years starts to make mistakes in sorting and delivering letters and packages. He also appears anxious and emotional. The supervisor observed these changes soon after the employee moved into his brother's house. The supervisor can ask the employee why his performance has declined and may explore ways to ensure that mail is not misdirected, but may not ask him questions about his intellectual disability unless there is objective evidence that his poor performance is related to his disability.

Need some advice on possible accommodations or how to handle these issues that is confidential and well informed? Try calling JAN, the Job Accommodation Network, at https://askjan.org/.   Using that service will be demonstrated at the November CMHRA meeting.


This article is not legal advice but should be considered as general guidance in the area of employment and corporate law. Rebecca Webber is an employment attorney. You can contact us at 784-3200 (telephone). Skelton, Taintor & Abbott is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine. It has been in operation since its founding in 1853.