Scott M. Lepak, Attorney
Barna, Guzy & Steffen, Ltd.
Mental health issues in the workplace present
significant legal and practical issues.
This session will focus on these management
How to identify a mental health issue;
How to address a mental health issue from a
performance and discipline perspective; and
How to minimize liability and litigation risks.
Pre Americans with Disabilities Act
“Screwy” behavior = discipline if it irritated the boss
What is “screwy “depended upon the boss.
Not wearing bell bottoms/going to the disco made you
Not knowing who shot JR or who JR was made you soft in
Being in management was sort of fun.
Not so much fun if you were the employee.
The Americans With Disabilities Act (ADA)
was enacted in 1990
Protected disabilities include an individual with a
mental impairment who meets one of three
The impairment substantially limits one or more major
life activities of an individual
Has a record of such impairment; or
Is regarded as having such an impairment
Simply being a jerk is not a disability
You don’t have to be an ace detective under the
Employer ADA obligations typically are triggered by
an employee’s disclosed mental illness and request
Once the Employer has reason to know the
employee has a mental health disability, it requires
the Employer to discuss reasonable accommodations
What does that mean? Don’t look too hard for
a mental illness if you don’t have to …
Conduct vs. Condition.
The general rule of thumb is don’t look for condition
if you can act based solely on conduct.
Figuring out a condition is hard.
Designating a condition is not the employer’s decision
The employer has no control over the designation
A condition that falls within the ADA triggers a
reasonable accommodation review obligation.
Conduct is easier.
Was it a violation of rule or policy?
WHAM, who is next?
Performance vs. Condition
Same general rule of thumb - don’t look for
condition if you can act based solely on
Addressing a matter as a performance issue is even
better than conduct because it steers clear of
limitations on discipline.
Upon identifying a performance issue with an
employee, the employee may raise condition as an
element that needs to be addressed.
Sometimes you can’t/shouldn’t steer clear of
Some employee issues need to be addressed that
don’t cleanly fall within disciplinary conduct or
work performance issues.
The source of these issues appear to be the
Defining what that condition is becomes the first
Deciding how to address the condition in the
workplace is the second step
The primary tool for identifying a mental health
issue is a Fitness for Duty examination.
Fitness for Duty examinations occur in two broad
Non-FMLA instances; and
Condition related inquiries that do not arise
out of a Family and Medical Act situation
include a management right to require that the
employee undergo a Fitness for Duty
Such a management order is subject to
challenge by a union as to whether there was
sufficient cause to require the FFDE. Hill v.
City of Winona, 454 N.W.2d 659 (Minn. App.
This management order is subject to the ADA
The ADA rules allow companies the ability to make sure that
their employees are able to fully perform their essential job
functions. In the context of a fitness for duty examination, this
requirement highlights the need to meet the following standards:
(1) objective evidence that the employee may be unable to
safely or effectively perform a defined job; and
(2) a reasonable basis for believing that the cause may be
attributable to physical or psychological factors. The central
purpose of a FFDE is to determine whether the employee is
able to safely and effectively perform his or her essential job
The ADA focuses on insuring employees are
judged only on their ability to perform their
specific job. This includes a FFDE
An exam and inquiries are not permitted if an
employee has a disability that is not job-related
and consistent with business necessity.
The Fitness for Duty Examination is conducted
by a professional identified by the Employer.
Pursuant to the Hill v. City of Winona case, a Union
has the right to challenge the professional who is
This limited union right is typically addressed by
identifying three professionals and allowing the
employee to select one.
An employee who refuses to undergo a FFDE
evaluation may be viewed as insubordinate
and subject to discipline.
This is subject to the right of the union to challenge
the order as noted in Hill before the examination
In Johnson v. County of Hennepin, 1998 WL 865677,
the employee was discharged after refusing to take a
FFDE, not going to work for an entire month, and
refusing to sign a medical release.
The Fitness for Duty Examination results in a
report to the Employer. This is the first step in
That report forms the basis of the Employer’s
next step - deciding how to address the
condition in the workplace.
If the evaluation determines there are no
employment concerns, the matter ends at that point.
If the evaluation identifies limitations, it then
becomes a “reasonable accommodation” issue under
The 2009 FMLA regulations created a massive change in how
employers approach fitness for duty examinations in instances
involving FMLA leaves.
employees returning from FMLA cannot be required to submit to
a fitness for duty examination unless the employer indicates that
this will be required in the designation of leave form (form WH-
The fitness for duty examination must be through the employee's
health care provider.
Certification can only be required if the FMLA was for the
employee’s own serious health condition that made the
employee unable to perform the employee's job. Section
In this instance, an employer may have a uniformly-applied
policy or practice that requires all similarly-situated
employees ( i.e., same occupation, same serious health
condition) who take leave for such conditions to obtain and
present certification from the employee's health care
provider that the employee is able to resume work.
The employee has the same obligations to participate and
cooperate) in the fitness-for-duty certification process as in
the initial FMLA certification process.
An employer may seek a fitness-for-duty
certification only with regard to the particular
health condition that caused the employee's
need for FMLA leave.
The certification from the employee's health
care provider must certify that the employee is
able to resume work.
Additionally, an employer may require that the
certification specifically address the employee's
ability to perform the essential functions of the
In order to require such a certification, an employer
must provide an employee with a list of the essential
functions of the employee's job no later than with the
designation notice required by §825.300(d); and
The employer must indicate in the designation notice
that the certification must address the employee's
ability to perform those essential functions.
- If the employer satisfies these requirements, the
employee's health care provider must certify that the
employee can perform the identified essential functions of
his or her job.
Following the procedures set forth above, the employer
may contact the employee's health care provider for
purposes of clarifying and authenticating the fitness-for-
Clarification may be requested only for the serious health
condition for which FMLA leave was taken.
The employer may not delay the employee's return to
work while contact with the health care provider is being
No second or third opinions on a fitness-for-duty
certification may be required.
An employer may delay restoration to employment
until an employee submits a required fitness-for-duty
certification unless the employer has failed to provide
the notice required in paragraph (d) of this section.
If an employer provides the notice required, an
employee who does not provide a fitness-for-duty
certification or request additional FMLA leave is no
longer entitled to reinstatement under the FMLA.
An employer i