Can Employers Conduct Mental Health Screenings?

by Jay P. Holland
March 17th, 2016

Can Employers Conduct Mental Health Screenings

On February 26, 2016, a coworker shot seventeen employees at a Kansas factory, three of whom were killed. While this was a high profile active shooting, unfortunately, it is not the only such workplace shooting.  As investigators piece together the motives for the murders, there is no question that there has been an alarming uptick of active shooting incidents in the U.S. over the past few years.

While the motivation and circumstances of the various incidents may vary, one often-cited factor in such events is mental illness. In this current environment of concerns about workplace shootings, employers might wonder if they can mitigate the likelihood of such an incident by screening employees and potential hires for mental disorders.

In this post, we will examine mental illness in the workplace and provide some helpful insights as to what employers can and cannot do to better serve their workforce.

Workplace Mental Illness Costs Employers

Before we take a closer look at screening employees for mental illness, we need to understand mental illness in more depth and how it affects the workplace.

First, the vast majority of individuals classified as mentally ill are not a threat. According to the National Alliance on Mental Illness (NAMI), 18.5 percent of adults in the U.S. – or 43.8 million people – experience mental illness in a given year. Furthermore, only 4.2 percent of the U.S. population – or approximately 10 million people – will experience a serious mental illness in a given year that substantially interferes with or limits one or more major life activities.

Even in situations where a crime is perpetrated by someone with mental illness, studies have shown that rarely is the mental illness linked to the criminal action. According to a 2014 study by the American Psychological Association, only 7.5 percent of crimes committed by perpetrators with a diagnosis of a serious mental illness were linked to their diagnosis. As the study’s lead researcher, Jillian Peterson, PhD, put it: “The vast majority of people with mental illness are not violent, not criminal and not dangerous.” 

While these facts support the assertion that mental illness is both prevalent and not typically linked to violent acts, employers may have good reason to conduct mental illness checks on their employees. According to the National Institute of Mental Health, providing mental health screenings for depression, and helping those employees, can have an impact on a company’s financials by increasing productivity and reducing costs. The same can be said about detection and early intervention programs related to alcoholism and drug use, which share a strong link with mental illness. In fact, according to NAMI, serious mental illness costs the U.S. economy more than $100 billion each year. 

In light of these facts, employers interested in conducting mental health screenings of employees should approach the topic from the standpoint that mental illness not only takes a toll on the afflicted but also on coworkers, customers and the company itself. The more assistance an employer can provide, the more that employer will be fostering a healthy and productive work environment for all. However, while it may appear at first blush that screenings and mental health assistance make common sense, the impact of disability discrimination laws must be considered.

Mental Health Screenings and the ADA

Companies that do wish to screen employees and potential hires for mental illness should deeply familiarize themselves with the Americans with Disabilities Act (ADA). This federal law affords the disabled, whether due to physical or mental impairment, protections that prevent and punish acts of discrimination in the workplace. Many states and localities have their own legislation that parallels the federal ADA. Make sure to also check your state laws as well to ensure compliance.

In regard to potential hires, the ADA prevents employers from asking questions about disability status during a pre-employment interview. Because serious mental illness is considered a protected disability under the ADA, employers should not conduct any type of screening for mental illness during the interview phase of the hiring process.

However, once a job offer is made, an employer can require a medical examination if it is a requirement for all entering employees. An employer can even request access to an incoming employee’s mental health records, but only if the employer makes the same request of all incoming employees. Failure to treat all incoming employees the same could lead to a claim of discrimination. Information learned from the disclosure of the health records may not be used to discriminate against an employee. The only time an employer can use such information to screen out an incoming employee is if the disability interferes with the requirements of the job and no reasonable accommodation can be made. A reasonable accommodation is a term used within the ADA to refer to a change in the work environment that allows someone with a disability to do his or her job. An example would be offering flexible work schedules to accommodate an ADA-protected employee’s doctor visits.   

For current employees, employers can request disability information only if it is job-related and consistent with business necessity. This means that there must be a reasonable basis that the employee is either unqualified for the job, requires a reasonable accommodation, or poses a direct threat to the health and safety of other employees.

To prove that an employee’s mental health causes a direct threat, employers must demonstrate that the employee poses a significant safety risk – one that cannot be eliminated or lessened by a reasonable accommodation. It also requires that an employer conduct an individualized assessment that relies on medical judgment. Mere suspicion is never enough to take an adverse action. 

So, both pre-employment screening and screening of existing employees without evidence that the employee presents a significant safety risk, could create significant liability for employers. What else can employers do in regard to mental health in the workplace?  

Evaluating Your Current Mental Health Programs

Besides conducting mental health screenings, there are a number of other tactics employers can take that prioritize an employee’s well-being while posing minimal legal exposure. For example, you can evaluate the healthcare services and wellness programs your company already has access to. Review your current mental health benefits offered by your insurance carrier and gauge if they are satisfactory in providing necessary assistance to your employees.

Next, ask your health insurance carrier questions about the behavioral health services offered through your company’s plan. What informational resources does your provider offer, such as online materials about mental illness or self-screening tools? If your employees do choose to seek behavioral health assistance, will they be connected to a provider trained in screening for mental illnesses, such as depression and anxiety? Upon receiving a diagnosis, do your employees have access to ongoing mental health services, including therapy as well as prescription medications? What resources are provided for employees struggling with alcohol or drug addiction?

In addition to evaluating your company’s health benefits, you might also want to look into implementing an employee assistance program (EAP). An EAP provides assistance to employees to help them cope with challenges that could affect their job performance and their well-being. EAPs can serve as an extra source of assistance for such issues as alcohol and drug abuse, work-related stress, and emotional distress.

Developing Additional Mental Health Programs

In addition to relying on health insurance and an EAP to provide services to employees who are suffering from mental illness, employers can do their part to develop their own programs to empower employees to seek the assistance they need.

One best practice is to develop an awareness program that educates employees on the types of mental illnesses and their symptoms. Such a program should be offered by a professional who has experience delivering mental illness awareness programs in workplace settings. In addition, any awareness program should provide employees with information about the company’s mental health resources and how to access them.

Employers should also consider enacting training programs for supervisors and managers that educate them on how to compliantly handle workplace issues that may involve an individual who is mentally ill. As mentioned earlier, mental illness can trigger the protections afforded under the ADA. Failure to comply with the ADA could result in a costly claim against your company.

Proudly displayed in Jay Holland’s office is a plaque that reads: “The Best Lawyer a Client Could Ever Have.” The customized award was a gift from a client at the end of a seven-and-a-half–year legal battle. The success wasn’t just winning the case in court; it was also serving as a loyal ally, protector, and advocate for the client throughout his long journey to achieve justice.

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