An Employer’s Guide to Managing Mental and Behavioral Health Under the FMLA and ADA D MEC Annual Meeting Atlanta - Augus

1. An Employer’s Guide to Managing Mental and Behavioral Health Under the FMLA and ADADMEC Annual MeetingAtlanta - August 2013 Presenters: Diane Dawson - U.S. Department of Labor, Branch Chief, FMLA and Other Labor Standards Pierce Blue, Esq. – Equal Employment Opportunity Commission, Special Assistant and Attorney-Advisor to Commissioner Chai Feldblum Marti Cardi, Esq. – Reed Group, Chief Compliance Officer

2. Agenda Introduction FMLA and Mental Health Issues ADA and Mental Health Issues Workplace Management under the ADA and FMLA Q&A

3. Introduction • Increasing amount of lost work time due to mental/behavioral health issues • More than 200 classified forms of mental illness • New DSM-5 – clarification or expansion? • Common disorders: • depression, bipolar disorder, dementia, schizophrenia, post-traumatic stress disorder (PTSD), obsessive-compulsive disorder (OCD), panic disorders, seasonal affective disorder (SAD), and anxiety disorders

4. Introduction • Workplace issues caused by mental health conditions may include: • Maintaining concentration • Staying organized and meeting deadlines • Memory deficits • Difficulty working effectively with supervisors and co-workers • Handling stress and emotions • Maintaining attendance • Dealing with change

5. Introduction • FMLA and ADA each has its own definitions of covered mental health conditions: • FMLA: “serious health condition” based on objective criteria • ADA: “mental or psychological disorder” such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities • AND each has its own rules for handling employees and medical information • Today: guidance from ADA and FMLA enforcement agencies, and suggestions for workplace management

6. The Family and Medical Leave Act (FMLA) and Mental Health Issues Diane Dawson - U.S. Department of Labor, Branch Chief FMLA and Other Labor Standards

8. Mental Health and the FMLA • FMLA is “neutral” • Objective standards for determining if any condition is qualifying (including mental health conditions) • Serious Health Condition (for employee’s own or if needed to care for employee’s spouse, parent, son or daughter) • Serious Injury or Illness (to care for a covered servicemember who is the employee’s spouse, parent, son, daughter or next of kin)

9. FMLA’s Objective Framework • Serious health condition (SHC) • FMLA defines SHC as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider • FMLA regulations define SHC to include chronic and long-term or permanent conditions and certain conditions requiring multiple treatments • No named conditions – instead objective criteria must be met • Leave for mental health conditions are protected in the same manner as leave for a physical condition

10. FMLA’s Objective Framework • Serious health condition definition includes: • Chronic conditions – condition with episodic periods of incapacity, requires “periodic” visits to a health care provider for treatment (at least twice per year) • Long-term or permanent conditions – condition with ongoing incapacity, supervision by health care provider • Conditions requiring multiple treatments - treatments needed to prevent incapacity of more than three consecutive calendar days • Includes leave for treatment and periods of incapacity (short or long – up to 12 weeks in a leave year)

11. FMLA’s Objective Framework • Protects leave to care for a parent, spouse, or son or daughter under age 18 with a mental health condition, if: • All objective SHC criteria are met • Protects leave to care for a son or daughter age 18 or older, if he or she is: • Incapable of self-care because of a mental or physical disability (defined by ADA, as amended), and • All objective SHC criteria are met • “Care” may include transporting the family member to treatment appointments or providing psychological comfort

12. FMLA’s Objective Framework • Military Caregiver Leave Serious Injury or Illness • Current servicemember • Covered veterans • Leave may be taken to provide care for mental health conditions (for example, PTSD, effects of traumatic brain injury) • Includes leave to take the servicemember to treatment and to provide care during periods of incapacity (short or long - up to 26 weeks in a single 12-month period)

13. Employee Notice Requirements • Employee must provide “sufficient” information for employer to know it “may” qualify • Not required to reveal diagnosis • Subsequent requests for leave for the same qualifying reason: • Employee must reference the qualifying reason, or • The need for FMLA leave • Employer may ask limited questions

14. Medical Certification • Employee must be notified of need for certification • Certification must be “complete and sufficient,” including appropriate medical facts about condition • Does not require diagnosis • Leave cannot be denied because of no diagnosis • as long as certification is otherwise complete and sufficient • Limited to the reason for the leave

15. Medical Certification • “Cure” period if not complete and/or sufficient • Employer must identify deficiencies in writing, and • Provide employee opportunity to correct • For clarification and authentication only - Employer contact with HCP • Cannot be direct supervisor • Cannot obtain additional information

16. Medical Certification • Fitness-for-duty may be required if: • Employer has a uniform policy applicable to all similarly situated employees • Provides notice to employee that it will be required • Relates to employee’s own SHC only • Certification requirement, not a physical examination by employer • Exams required by employer after return are outside of FMLA protection • Limited use with intermittent leave; only if: • Reasonable safety concerns exist (No more often than once in a 30-day period) • Required by State or local law or pursuant to a collective bargaining agreement

17. Confidentiality Requirements • Documents and records • FMLA medical documentation must be: • Maintained as confidential • Kept in separate file from personnel file • Compliant with the ADA, if ADA also applies • Information and knowledge • FMLA information cannot be shared with others (with limited exceptions)

18. GINA Considerations Genetic Information and Nondiscrimination Act (GINA) Can include a GINA disclaimer on FMLA medical certifications

19. Managing Mental and Behavioral Health under the ADA Pierce Blue, Esq. – Equal Employment Opportunity Commission Special Assistant and Attorney-Advisor to Commissioner Chai Feldblum

20. Overview Employees with Mental and Behavioral Health issues pose unique challenges under the ADA, particularly in regards to requests for medical information.

21. ADA – Medical Information and Mental Health • Three key concerns: • (1) When can an employer permissibly seek medical information related to a mental health issue under the ADA?; • (2) What information can the employer permissibly seek once it is allowed to ask (and does GINA raise concerns)?; and • (3) Who can have access to the medical information that the employer gathers?

22. When? The ADA strictly prohibits an employer from seeking medical information unless the request is “job-related and consistent with business necessity.”

23. When? • EEOC has read this standard to permit medical inquiries in the following instances: • (1) When the employer has a reasonable belief based on objective evidence that an employee’s ability to perform a job: • is impaired by a medical condition (performance issues) or • the employee poses a direct threat to himself or others due to a medication condition (safety issues); or • (2) After an employee has requested a reasonable accommodation.

24. When? Example: Mary is an auditor at an accounting firm. In the past 3 months the number of audits she’s completed as fallen dramatically. The employer asks her why her output has decreased and she responds by saying that she was recently diagnosed with bipolar disorder and the stress associated with counseling and adjusting to new medication has made it difficult to focus on work. Can the employer then ask follow-up questions about the medication and her treatment?

25. When? Example: Bob works as a file clerk at a law firm. He has a reputation for being eccentric and other employees have observed him muttering to himself and acting “strange.” The “strange” behavior does not appear to impact Bob’s work. Can the employer ask Bob if he has a mental impairment?

26. When? Example: Jo Anne works as a customer sales representative. At her yearly performance meeting she starts complaining about co-workers harassing her on the job. As the conversation continues she becomes extremely agitated, slams her fist on the table, and yells out that someone is “going to pay for this!” The company considers the outburst a threat to the office and wants to send Jo Anne to a psychological evaluation – can they do this?

27. What? What kind of medical questions can an employer ask once it has a reason to ask?

28. What? For example, if an employer is seeking information in response to a request for accommodation then the employer can ask for information that establishes whether the person is covered by the ADA and, if so, whether the accommodation is needed. Likewise, if a request is related to a safety concern, the employer can ask for documentation showing whether the individual does or does not pose a risk to himself or others.

29. What? Example: Steve requests a half-day of leave to attend a counseling session as an accommodation. The employer was not previously aware of Steve’s impairment and requests medical documentation showing that Steve is a person with a disability under the ADA. Is that appropriate?

30. What? Example: Using Steve again, what if Steve’s doctor responds to the request by saying that Steve “has a mental impairment that substantially limits his brain functioning when active”? Can the employer respond by requesting a more specific diagnosis?

31. What? Example: Barbara asks her employer for a modified work schedule as an accommodation. When asked why she needs this accommodation, Barbara responds by saying that she has major depressive disorder and was recently put on new medication that causes extreme drowsiness when a patient first starts taking it. This side effect makes it difficult for her to arrive at her previous start time. The revelation of major depressive disorder disturbs the employer and leads it to request Barbara’s full psychiatric history. Is that permitted?

32. What? Example: Now suppose Barbara only requests the modified schedule for one week but the company, owing to past experience with an employee who was on the same medication, is concerned that the drowsiness will linger for a longer period of time. Can it request further information from Barbara’s doctor or ask for a second opinion?

33. A note on GINA The Genetic Information Non-Discrimination Act (GINA) prohibits the collection of certain genetic information. Certain standard requests for medical information may inadvertently pick up family medical history. To be safe, an employer should include a GINA disclaimer on all requests for medical information. See 29 C.F.R § 1635.8(b)(1)(i)(B) for sample language.

34. Who? Generally, an employer must keep all medical information it learns about an applicant or employee confidential and must keep this information separate from general personnel files.

35. Who? • Under the following circumstances, however, an employer may disclose that an employee has a mental disability: • to supervisors and managers where necessary to provide a reasonable accommodation or to meet an employee's work restrictions; • to first aid and safety personnel if an employee would need emergency treatment or require some other assistance in the event of an emergency; • to individuals investigating compliance with the ADA and similar state and local laws; and • where required for workers' compensation or insurance purposes, for example, to process a claim.

36. Who? Essentially, an employer should only disclose the presence of a mental disability to persons who need to know. Example: So what about Barbara from the previous examples? Who needs to know about her disability and accommodation?

37. ADA “medical inquiry” issues • Beware of “requesting” a medical examination • Kroll v. White Lake Ambulance Authority– employer requirement of psychological counseling constituted an ADA medical exam • EEOC v Dillard’s – employer requirement of a sick leave note with illness information violated ADA

38. Mental Health & Workplace Management under the ADA and FMLA Marti Cardi – Reed Group® - Chief Compliance Officer Reed Group® disclaimer: This presentation is designed to provide accurate information in regard to the subject matter covered. It is provided with the understanding that Reed Group is not engaged in rendering legal or other professional services. If legal advice or other expert assistance is required, seek the services of an attorney or other professional person. Due to the numerous and diverse factual issues which arise in any human resource or employment question, each specific matter should be discussed with your attorney.

39. Mental Health & Workplace Managementunder the ADA and FMLA • Foster atmosphere of acceptance, accommodation, and compliance • Publish policies and post notices that inform employees of their ADA and FMLA rights • Specify processes for requests for leave of absence or accommodations • Provide multiple avenues for complaints or requests for help • Encourage employees to ask for help before performance, conduct, attendance becomes a problem

40. Mental Health & Workplace Managementunder the ADA and FMLA • Be proactive: address performance, conduct, attendance issues when they arise – • Don’t wait to receive a leave or accommodation request • Follow standard company policies & processes • Identify and document issues • Develop action plan with employee to improve • Ask the employee: “Is there anything we can do for you?” “Is there anything you need from the company?” • Known or approved ADA and FMLA absences cannot be counted against employee for attendance or other job measurements!

41. Mental Health & Workplace Managementunder the ADA and FMLA • Remind employee of EAP benefits if you learn of a problem: • Growing benefit: • 2005: offered by 46% of employers • 2012: offered by 74% of employers • Employers save $5-$16 for every $1 spent on EAP • Reduced absences, turnover, and medical claims • Psychological issues account for 41.7% of fielded calls • Benefits include counseling and advice for problems that can contribute to mental health issues “The Hot List 2-13: The Ever-Expanding Role of the EAP”; workforce.com/apps/pbcs.dll/article?AID=/20130605. . . • Link EAP to all absence management programs

42. Mental Health & Workplace Managementunder the ADA and FMLA • Be aware of possible mental health accommodations or leave alternatives • Maybe full-time FMLA leave or leave as an ADA accommodation isn’t necessary • FMLA - consider reduced schedule or intermittent leave • ADA – consider a workplace accommodation, modified schedule, etc. • JAN offers accommodation ideas to deal with mental health issues related to attendance, concentration, emotions, organization, panic attacks, stress, coworker and supervisor interaction . . . askjan.org

43. Mental Health & Workplace Managementunder the ADA and FMLA • Training • Supervisors/managers: • Employee rights and employer responsibilities under ADA & FMLA • Company policies and resources • Good management practices • Avoid mental health stereotypes in management and decision-making • Supervisors & managers: Don’t try to handle it yourself! • Employees: • Rights and responsibilities • Company processes and reporting policies

44. Mental Health & Workplace Managementunder the ADA and FMLA • Managing mental health medical information • Don’t ask for more medical info than you need, or when you don’t need it • ADA: medical inquiries must be “job related and consistent with business necessity” – EEOC v. Dillard’s • FMLA: • No more info than permitted by regs, and only in connection with an absence • DOL cases Presbyterian Hospital, Hawker Beechcraft

45. Mental Health & Workplace Managementunder the ADA and FMLA • Communication issues • What if the absent employee doesn’t respond to phone calls or emails? • What if the employee isn’t able to explain his mental health condition and what he needs? • What if the employee is ambiguous (or lies) as to reason for requested time off? • What if the employee says “I quit”?

46. Mental Health & Workplace Managementunder the ADA and FMLA • Workplace conduct issues • What if the employee’s conduct is unacceptable? • What if the employee can’t get along with a manager? or co-worker? or a customer/client?

47. Mental Health & Workplace Managementunder the ADA and FMLA • Workplace safety issues • What if the employee is affected by mental helath condition in a way that renders her unsafe in the workplace? • What if the employee takes medication for mental health condition that makes her drowsy, confused . . . • What if the employee exhibits threatening or violent behavior? • Toward others • Toward himself

48. Mental Health & Workplace Managementunder the ADA and FMLA • Workplace performance issues • What if the employee is “at work” but not getting the job done (quantity or quality)? • ADA: Balance: • Employer’s obligation to provide an accommodation (for example, remove nonessential tasks?) - with • No obligation to change or relieve the employee of essential functions – but a workplace accommodation may be required • FMLA: Eligible employee does not have to be totally incapacitated to be entitled to an FMLA leave

49. Questions?

50. FMLA Resources Visit the WHD homepage at: www.wagehour.dol.gov Call the WHD toll-free information and helpline at 1-866-4US-WAGE (1-866-487-9243) Call or visit the nearest Wage and Hour Division Office LeaveAdvisor™ - Reed Group’s on-line reference guide to FMLA and 50-state leave laws: http://leaves.mdguidelines.com/ Reed Group blog - http://blogreedgroup.wordpress.com/ Jeff Nowak’s blog – http://www.fmlainsights.com/