When a Worker Needs Treatment, the Boss Must Tread Lightly

For employers, it might seem like an easy thing to assist workers in getting medical help the boss thinks they need. You spot a problem, ask what’s wrong and provide some advice.

Of course, in the workplace, it’s never that simple. Not with privacy concerns, common-sense compassion toward a co-worker and the dictates of the federal disabilities law.

Take a look at one manager’s dilemma:

“I have an employee who exhibits signs of manic-depressive behavior. One day she is an extremely upbeat, incredibly productive worker. The next, she is angry, moody and unproductive and accuses others in the company of conspiring against her. The overall quality of her work is good, but the unpredictable mood changes and the ‘maintenance’ they require are beginning to eat up increasing chunks of my time. . . . How can I tactfully refer her to the proper resources to get help? We do not have an employee assistance program. Can I even broach the subject without conflicting with the Americans With Disabilities Act?”

The manager said that the employee is fine in the office four days out of five, but it’s that fifth day that bothers him and disrupts the workplace routine.

“She pretty much shuts down and can’t do anything,” he said. “I’m basically trying to help her overcome obstacles, to present criticism in a positive manner. We’ve talked about time-management issues. She’s very hard on herself, angry at herself, sometimes at other people. She just sits at her desk, going through the motions of trying to work, kind of like pushing food around a plate.”

So what to do?

Such questions arise often enough that the Equal Employment Opportunity Commission in July released guidelines on the extent to which employers can pry into the medical needs of their workers.

The commission’s basic rule is this: “Disability-related inquiries and medical examinations must be,” in the words of the ADA, “ ‘job-related and consistent with business necessity.’ ”

In its guidelines, the commission said that the standard is met “when an employer has a reasonable belief, based on objective evidence, that an employee’s ability to perform essential job functions will be impaired by a medical condition or an employee will pose a direct threat due to a medical condition.”

Deborah Keary, director of the information center at the Society for Human Resource Management in Alexandria, Va., said that under the EEOC’s guidelines, the manager can ask the woman if she needs some medical assistance because of her observed inability to function capably throughout the workweek.

But Keary pointedly added: “I’d still stick to the job-related aspects of this as much as possible. I’d hesitate to say he was recommending mental health care, but rather discuss his concern in more general terms, such as saying that when you [exhibit abnormal conduct], it causes us a problem. Ask if you feel you need some kind of help to get [her workplace behavior] under control, not ‘You need a shrink.’ And he ought to come prepared with some suggestions of facilities available in the community where she can get some help.

“You just can’t go up to someone and say, ‘you have mental health problems,’ ” Keary said. “It has to be job-related and a business necessity.”

The EEOC gave several examples of when it would and wouldn’t be acceptable to ask about an employee’s medical condition. In one case, the agency said that after a government tax auditor said she was performing poorly because her medication made her lethargic, it was appropriate for a supervisor to ask how long the medication’s side effects might last or to ask her to provide documentation of the effects from her health-care provider.

Similarly, the EEOC said it was acceptable for a construction company to require a crane operator to get a medical examination after he complained of lightheadedness, to see if he was fit to continue performing his job hoisting concrete panels.

In another case, the EEOC said a supervisor overheard a secretary tell a co-worker that she had discovered a lump in her breast and feared that she might have breast cancer. But the secretary continued to come to work every day and perform well.

In this instance, the EEOC said that because the employer had no firsthand evidence that the secretary would be unable to perform her work, he could not ask any medical-related questions or require the worker to get a medical examination.

The EEOC said employers must base their decisions on “objective evidence,” not “general assumptions.”

The agency cited the example of a produce worker at a grocery store who is HIV-positive. The employer was worried that the worker might be a health threat to others because she frequently used sharp knives and might cut herself. But the store required such workers to wear gloves and enforced the rule. The EEOC said that under such circumstances, “available scientific evidence shows that the possibility of transmitting HIV” to co-workers or the public is virtually nil.

That being the case, the employer has no right to make medical inquiries or require an exam.