Mental Health in Workplace: Employee’s Privacy vs. Employer’s Right to Know

By | April 2, 2015

How do you stop a mentally ill person from sitting down at the controls of a jetliner, or a nuclear power plant, or from holstering a gun for a night on the beat?

The news that the pilot of the Germanwings jet that crashed Tuesday had been judged unfit for work by a doctor, citing an unspecified mental illness, raises tough questions about mental health in the workplace.

How can employers respect workers’ privacy while preventing people suffering from serious mental illness from putting themselves or others at risk on the job? How can companies assist those who need help without intruding on their workers’ private lives?

Mental health problems are pervasive. In Europe, an estimated 27 percent of adults—83 million people—have had trouble with disorders such as depression, substance abuse, or anxiety in the last year, according to the World Health Organization. The percentage is similar in the United States.

Both employers and workers have incentives to keep discussions of mental health out of the workplace. Managers fear that learning about an employee’s depression, for example, could open the door to discrimination suits if the employee is disciplined later on. Workers fear being ostracized, held back from promotions, or even fired. Certainly mental illness itself, especially if properly treated, doesn’t mean the employee will behave irresponsibly or dangerously on the job.

“There are tremendous stigma issues,” said Deirdre Kamber Todd, an employment lawyer in Allentown, Pa. “As much as we would like to think that we’re above and beyond all that, it’s still a significant problem.”

In the U.S., laws including the Americans with Disabilities Act (ADA) prevent companies from asking job applicants about their medical status, including their mental health. Once a job offer has been extended, applicants or employees can be evaluated to see whether they can perform the requirements of the position. That can include both physical and cognitive or emotional evaluations.

In jobs for which the stakes are particularly high, employers can probe for more information. Doctors, pilots, school bus drivers, and power grid workers, for example, may be held to higher standards under industry regulations or professional licensing guidelines. “We have the ability to say, you know what, there are additional requirements for safety because we have schoolchildren on these buses,” Todd said.

Some of the occupations in which employees in crisis could pose particular risks, such as police work, the military, and aviation, have the most macho cultures that discourage people from seeking help.

“In those professions, any sort of acknowledgement of mental health issues has been viewed as weakness,” said Ron Honberg, policy director for the National Alliance of Mental Illness. “We could be trying to create an environment that’s more knowledgeable and accepting of mental health conditions and doesn’t cause people to be ostracized if they admit to it.”

Honberg said the Federal Aviation Administration loosened longtime bans on flying by anyone taking psychiatric medications, allowing exceptions for some antidepressants. That step, he said, can help encourage pilots to seek treatment.

On the other hand, if the response to the Germanwings crash is stricter bans on flying for anyone with a history of mental health problems, he said, it could drive people to hide symptoms. “What is going to be the impact on people willing to step forward and get help if they need it?” Honberg said.

More employers need to recognize the risk of untreated depression and other mental illnesses, said Howard Mavity, a partner at labor law firm Fisher & Phillips. “It’s really been ‘don’t ask, don’t tell,’ ” he said.

That might change in industries like transportation, construction, pipelines, or utilities, where the costs if something goes wrong can be astronomical. Employers may decide trying to reach out to workers they suspect are in crisis will be worth the risk of a discrimination suit if it prevents a larger catastrophe, Mavity said.

Weighing the risk of a plane crash against the likelihood of “at worst a six-figure ADA claim,” he said, “they’re going to be aggressive.”

Topics Commercial Lines Business Insurance

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