November 2003

Avoiding Lawsuits is a service of the employment law training and consulting firm of
Counsel Consulting Group LLC and the law firm of Powell Trachtman Logan Carrle & Lombardo PC.

THE NEXT BIG THING: BIPOLAR EMPLOYEES AND THE ADA
The Lawsuits Are Coming. Here’s How to Dodge the Bullet

Our job is to figure out what is likely to go wrong in our clients’ businesses, before it happens. So, with that in mind, we sound the following alarm: one of the next big things in ADA claims against employers will focus on employees afflicted with “bipolar disorder,” often referred to as manic-depressive illness.

Maybe you didn’t buy Microsoft at 1 ¼. Maybe you locked in a mortgage at 9 ¾. It’s still not too late to make a killing – plan now to avoid the bipolar litigation wave, and the money you will save in legal fees and litigation settlements will more than make up for your prior lack of foresight.

A Typical Scenario

Let’s suppose you hire a new office manager, and arrange to meet with her every month to review pending projects. In June, she tells you, with great enthusiasm, that she is renegotiating rates with the medical insurance carrier, instituting a new bid procedure for vendors, installing updated software on all workstations, designing a secretarial training course, and implementing a new employee evaluation procedure. You are amazed at her enthusiasm and resolve, and you ask her how she is going to find the time to accomplish so ambitious an agenda. She assures you she has it all under control and can’t wait to get started.

By July, you note that substantial progress has, in fact, been made. But by August you detect a diminution in her enthusiasm and self confidence, and a substantial slowdown. At the September meeting, she tells you that very little has gotten done over the last two months, she breaks down crying, and offers her resignation. You assure her that she simply bit off more than she could chew, and tell her to stick with it.

At the October meeting she appears with a detailed timeline for completion of all the tasks discussed in June, and she laughs off the July through September period as a “down time” that has strengthened her resolve. In October, although some things have progressed, you see the downturn re-surfacing, and by November, her enthusiasm has waned, and you notice that she is coming in late and leaving early. By December, you receive another offer to resign. You begin to dread the January meeting.

You understandably reach the conclusion that you need more predictability in your key employees and you meet with her. You diplomatically raise the subject of her mood swings and unpredictable behavior. Before you can finish, she blurts out, “I know. I can’t figure out what’s wrong with me. I obviously need some help to get through this. I wouldn’t blame you if you fired me right now.”

So What’s The Problem?

In the pre-ADA world, if an employee was not doing his or her job, an employer could terminate, discipline, demote or otherwise deal with the employee as the employer thought best. In the post-ADA world, however, if the employee’s poor performance is caused by a “disability,” the employer no longer has those freedoms. Instead, as soon as the employer is on notice of the problem and the desire of the employee to get some help, the employer must engage in an interactive dialogue with the employee to determine if the employee can be enabled to perform the “essential functions” of his or her job through a “reasonable accommodation.” If there is a reasonable accommodation that can do the trick, the employer must make that accommodation available to the employee.

Make no mistake about it: the ADA removes an employer’s freedom to discipline or terminate employees who are not doing their jobs. There is another level of analysis that the law has injected into that decision-making process.

So, if you observe an employee whose job requires some heavy lifting limping around the loading dock, you’re on notice of a potential disability, and you had better be prepared to talk about ways to shift responsibilities or utilize lifting equipment. If your assistant keeps telling you he cannot hear you over the telephone, you are, again, on notice of a potential disability, and you better start talking about telephones with amplification capabilities.

But what happens when there is a disconnect between your observations of an employee’s poor job performance, and your recognition that the poor job performance results from an ADA-protected disability? Suppose the “that’s a potential disability” bell simply does not go off in your head?

For instance, you hire an employee who falls asleep on the job. It turns out the employee is on a medication that causes temporary drowsiness, and all he needs is an extra thirty minute break to get through the day. You’re angry, it never occurs to you that there might be an explanation, and you fire him on the spot. Or you have an employee who takes forever to provide the reports you need. It turns out that he has a vision problem, and would be a top performer if provided with a special computer monitor. You’ve got deadlines to meet, you’ve got no time to deal with employees who are holding you back, and he gets passed over for promotion and salary increases.

Can you get hammered under the ADA for not recognizing that what seemed like incompetence was really the product of a “disability”? You better believe you can... big time.

Which takes us back to bipolar disorder…

Unreasonable, Unreliable and Unpredictable? Or Bipolar?

Bipolar disorder is a mental illness that has been recognized and written about for centuries. It involves severe mood swings that result in episodes of intense highs (mania) and extreme lows (depression). The highs and lows can cycle very quickly, or they can spread out over several months, with extended periods of apparent normalcy in between. The symptoms vary by individual and degree, making diagnosis particularly challenging. As a matter of workplace realities, the stigma that generally surrounds mental illness leads many employees to conceal and deny the problem.

How do you tell an employee who is unreliable because he simply doesn’t care about his job, from an employee who is trying his best but is afflicted with bipolar disorder, and is entitled to an “accommodation” under the ADA?

But how do you tell an employee who is simply unreasonable, unreliable and unpredictable because they don’t care enough about their job, from an employee afflicted with bipolar disorder? Most employers who deal with bipolar employees are singularly angry and frustrated. We hear the details all the time: broken promises, unpredictable outbursts, manic periods of productivity followed by weeks of inexplicable inactivity. Management has to do something about an employee who disrupts a workplace to that extent, but it can be very difficult, perhaps impossible, to distinguish intentionally unreasonable, unreliable and unpredictable employees, from those with real emotional problems – and there lies the monumental legal risk. Making a mistake can entail years of litigation, and hundreds of thousands of dollars in legal fees and potential damages.

It has already begun. Bipolar disorder is recognized as a covered disability under the Americans with Disabilities Act. In 2003, the EEOC prosecuted and settled a claim on behalf an employee with bipolar disorder, noting “[m]entally disabled employees are protected under the ADA just as those who are physically disabled. Disabled employees are entitled to consideration of a reasonable accommodation for their disability.”

So Much for the Problem. What’s the Fix?

Like so much else in the world of preventing employment liabilities, the fix begins with training the managers who deal with the employees. It is unwise, unfair and fiscally irresponsible to leave managers on their own, without the tools they need to minimize the liabilities that bring so many businesses to their knees. They need to be equipped with the knowledge and decision-making skills that are required to make the right choices in difficult circumstances. Here’s how to do it.

The First Step: Understand the Scope of the Problem

Getting managers to be on the alert for bipolar disorder begins with convincing them that it is a real disease (as opposed to a lack of will power or personal discipline), and that it is a significant enough problem to merit their attention. That’s human nature. Presenting the documented facts usually does the trick.

Bipolar disease stems from a chemical imbalance that affects the way we experience moods. It affects as many as 10 million Americans, and its impact on workplace productivity is monumental.

The research on bipolar disorder is copious, and the evidence of organic etiologies is overwhelming. That’s the first thing managers need to understand: this is an organic disorder. The second thing they need to understand is how widespread the condition really is. There is general agreement in the literature that, until very recently, bipolar disorders have not been adequately diagnosed. Many persons suffering from the disorder get labeled as chronically depressed, for instance, because they only seek help when in the depressive stage, not the manic stage. Even so, the medical literature reflects a consensus that at least 2.5 to 3% of Americans – almost 10 million people -- suffer from bipolar disorder.

But that is not the full story. The cost of dealing with bipolar disorders far outstrips its statistical prominence. The American Journal of Psychiatry examined insurance claims for bipolar patients in 1996, and reported that one out of 5 bipolar patients had at least one psychiatric admission in 1996, and bipolar patients accounted for over 12% of all behavioral health care expenditures. The medical literature also indicates that approximately 20% of persons with untreated bipolar disorder commit suicide.

A 1991 report from the National Institutes of Mental Health tried to quantify the financial havoc the disorder had caused. The conclusion: starting with the proviso that estimates, even at that time, were much too low, the NIMH concluded that 1991 total costs for bipolar illness were a staggering $45 billion. Of that figure, $17 billion was attributed to lost productivity in the workplace.

The Second Step: Understand the Indications

Managers need to know bipolar disorder when they see it – that is, they need to be equipped with the knowledge that will cause them to think “potential disability,” not “irresponsible employee,” when observing bipolar symptoms. There is no other way to avoid the ADA consequences that will flow from non-recognition.

• Increased energy or restlessness
• Rapid speech and racing thoughts
• Euphoria
• Extreme irritability and distractibility
• Unrealistic belief in super-powers
• Increased sexual drive and provocative behavior
• Aggressive behavior
• Substance abuse, particularly cocaine, alcohol and sleeping pills
• Decreased need for sleep
• Unusually poor judgment

Symptoms of the depression cycle may include periods of:

• Persistent sadness or anxiety
• Hopelessness or pessimism
• Guilt, helplessness
• Loss of interest in ordinary activities and pleasures
• Loss of energy; fatigue
• Chronic pain
• Unexplained weight gain or loss; loss of appetite
• Restlessness or irritability
• Difficulty concentrating or indecisiveness
• Difficulty sleeping
• Thoughts of death or suicide; suicide attempts

The Third Step: Understand the Potential Accommodations

There is no present cure, although there are treatments for bipolar disorder. However, not all persons respond to the treatments in the same way, and there are many jobs that persons with serious bipolar disorders will not be able to perform, no matter how many accommodations you offer. The ADA protects employees who can perform the essential functions of their job if given a reasonable accommodation, and depending on the person and the job, the effort does not always work.

But as important as it is to understand that not every effort will succeed, it is equally important to understand that a great many persons with bipolar disorder will benefit, often dramatically, by one or more accommodations, and in those cases, managers need to be aware of the options. To assist that process, the Office of Disability Employment Policy of the U.S. Department of Labor’s Job Accommodation Network offers guidance on some possible accommodations specifically applicable to employees with bipolar disorders. It’s not easy, and it will take some trial and error:

Maintaining Stamina during the Workday:

• Flexible scheduling
• Allow longer or more frequent breaks
• Provide additional time to learn new responsibilities
• Provide self-paced work load
• Provide backup coverage for when the employee needs to take breaks
• Allow for time off for counseling
• Allow for use of supportive employment and job coaches
• Allow employee to work from home during part of the day or week
• Part time work schedules

Maintaining Concentration:

• Reduce distractions in the work area
• Provide space enclosures or private office
• Allow for use of white noise or environmental sound machines
• Increase natural lighting or provide full spectrum lighting
• Allow the employee to work form home and provide necessary equipment
• Plan for uninterrupted work time
• Allow for frequent breaks
• Divide large assignments into smaller tasks and goals
• Restructure job to include only essential functions

Difficulty Staying Organized and Meeting Deadlines:

• Make daily TO-DO lists and check items off as they are completed
• Use several calendars to mark meetings and deadlines
• Remind employee of important deadlines
• Use electronic organizers
• Divide large assignments into smaller tasks and goals

Working Effectively with Supervisors:

• Provide positive praise and reinforcement
• Provide written job instructions
• Develop written work agreements including the agreed upon accommodations, clear expectations of responsibilities and the consequences of not meeting performance standards
• Allow for open communication to managers and supervisors
• Establish written long term and short term goals
• Develop strategies to deal with problems before they arise
• Develop a procedure to evaluate the effectiveness of the accommodation

Difficulty Handling Stress and Emotions:

• Provide praise and positive reinforcement
• Refer to counseling and employee assistance programs
• Allow telephone calls during work hours to doctors and others for needed support
• Provide sensitivity training to coworkers and supervisors
• Allow the presence of a support animal
• Reinforce peer supports

Attendance Issues:

• Provide flexible leave for health problems
• Provide a self-paced work load and flexible hours
• Allow employee to work from home
• Provide part-time work schedule
• Allow the employee to make up time missed

Issues of Change:

• Recognize that a change in the office environment or of supervisors may be difficult for a person with bipolar disorder.
• Maintain open channels of communications between the employee and the new and old supervisor in order to ensure an effective transition.
• Provide weekly or monthly meetings with the employee to discuss workplace issues and production level

What Now?

The formula for preventing liabilities is almost always the same: figure out the most likely sources of problems; train those in the best position to prevent those problems in the most effective preventive techniques; and institutionalize procedures that make prevention a seamless part of the workplace.

As difficult as that it may be, prevention remains a much easier option than cure.

We do this for a living. Let us know if we can help.

WHAT DO YOU THINK?

This month’s WHAT DO YOU THINK? puts you in the shoes of the United States Supreme Court.

On October 8, arguments were held in the case of Raytheon Co. v. Hernandez. Here are the facts. Hernandez was employed by Hughes Missile Systems (later acquired by Raytheon). As the result of a drug screening, Hernandez tested positive for cocaine, and resigned rather than facing termination pursuant to Hughes’ clear anti-drug policy. Later, Hernandez claimed that he successfully completed rehabilitation, and he reapplied for a job with his former employer, but was turned down. Hernandez then sued under the ADA, claiming that he was being discriminated against because of his “disability” – a former drug addiction.

Remember: Hernandez was not a stranger who walked in off the street, applied for a job and was refused employment because of a former drug problem. In fact, the ADA will protect former addicts from discrimination based on the stigma of their previous addiction. Rather, Hernandez was an employee who not only violated the law, but also violated a very serious and important company rule that prohibited drug use on the job. Shouldn’t Hernandez’ employer be allowed to refuse employment on that basis? If they are forced to rehire law breakers and rule violators, what will that do to their efforts to enforce the law and their rules in the workplace?

But what about Hernandez’ position? Suppose a physician testified that Hernandez’ physical and mental conditions created a susceptibility to drug use that was virtually impossible for Hernandez to control without treatment? Now that Hernandez has beaten his “disability,” should the employer still be permitted to discriminate against him? Suppose Hernandez was fired because he had a back problem and could no longer do his job – once he is better, the ADA would prohibit the employer from discriminating against him on the basis that he used to have a back problem. What’s the difference?

In due course, we will find out what the Supreme Court thinks. What do you think?

Click here to give us your point of view. Next month we will share your input (but we will never disclose your name, email address or other identifying data without your permission).

ANALYSIS AND REVIEW:

WHAT DO YOU THINK? -- SEPTEMBER 2003

Our September 2003 WHAT DO YOU THINK? dealt with a common and legally-dangerous workplace situation – what can you do, and what must you do, in respect to an underperforming employee who might have a disability, but isn’t complaining about it, and is still doing his job? Do you reach out? Do you leave him alone? Do you contact him through an intermediary?

Here are some of your responses. Thanks to all who provided us with their view.

“Make sure a complete physical examination is performed to get to the bottom of the health problem.”

“I would approach the employee and discuss his current health situation with him "AND" his financial status to determine if he could be placed on a part-time status in a different position.”

“I would ignore situation until he comes to me. He obviously is still able to do his job. He knows what his limits are better than I would.”

“Mind your own business.”

“If the person is performing their job in an adequate fashion and their health has not had a negative impact upon their job performance you should not approach the individual or any of your other employees. However if this is a true observation and the person truly appears ill and you have a friendly relationship with the employee you can make an inquiry to them regarding their health. The employee could welcome your concern or not.”

“If one of my employees were in declining health...Although he continued to work without complaining. I would feel he or she is continuing for fear of losing a job for taking to much time off. I would speak with that employee and suggest that they seek proper medical attention and take the necessary sick time off. So that perhaps if lightening the load is necessary, maybe the person can be placed in another position.”

“You’re not a medical person, wait for him or her to come to you.”

So, what’s the “right” answer?

According to the guidance offered by the Equal Employment Opportunity Commission regarding the Americans with Disabilities Act, there is a basic rule all employers must follow: The ADA strictly limits the circumstances under which you may ask questions about an employee's disability or require medical examinations of employees. Such questions and exams are only permitted where you have a reasonable belief, based on objective evidence, that a particular employee will be unable to perform essential job functions or will pose a direct threat because of a medical condition. However, you must be careful not to discriminate against a qualified person with a disability based on myths, unsubstantiated fears, or stereotypes about that person's ability to safely perform the job. The harm must be serious and likely to occur -- not remote and speculative.

In our scenario, since the employee currently is able to perform the essential functions of his job, the employer would not be allowed to require a medical examination. Those who responded by suggesting that the right course was to “make sure” a physical examination was performed would have violated these restrictions. If the employee's health worsens and the essential functions of the job are not met and/or there is a serious and objective safety concern, then the employer can require the medical exam. At this point, the employer would also be free to engage the employee in conversations.

During the "interactive process" that is to result once this threshold is crossed, the employer and employee should talk about available and appropriate accommodations, and explore viable options. But remember that an employer may not require a qualified individual with a disability to accept an accommodation. If, however, an employee needs a reasonable accommodation to perform an essential function or to eliminate a direct threat, and refuses to accept an effective accommodation, the employee may not be qualified to remain in the job.

In addition to possible ADA concerns, the employee in our scenario may also be entitled to protection under the Family and Medical Leave Act (FMLA). A recent decision in an FMLA case suggests that employers that are aware of an employee’s sudden changes in behavior or levels of productivity may be required to give the employee FMLA leave. In the case of Byrne v. Avon Products, Inc., 328 F.3d 379 (N.D. Ill. 2003), a highly-regarded employee began sleeping on the job. The Court noted that given the sudden change in the employee's behavior, the employer was on notice of the employee's need for FMLA leave.

If the employer has wellness services which it regularly offers to all employees (e.g. work life programs, free health checks, etc.) the employer can certainly avail those services to the employee in our scenario, provided that the employee is not singled out in a negative or discriminatory manner or pressured to take advantage of them.

Bottom line: There is no one “right” answer, but there are some approaches that are much less likely to lead to problems than other approaches. As always, let us know if we can help.

Counsel Consulting Group LLC helps companies throughout the United States avoid employment and HR-related claims and liabilities. CCG assesses existing policies, procedures and problem areas; it provides customized liability-avoidance training to managers and executives; and it designs and implements business techniques that reduce employment liability risks on a long term basis. CCG also offers specialized workshops for managers and HR executives, customized consulting in focused employment-related areas, and CD-ROM and web-based training alternatives. For more information, contact us at info@counselconsulting.com and visit our website at www.counselconsulting.com

Powell Trachtman Logan Carrle & Lombardo PC. is a full service law firm with offices in suburban Philadelphia , PA , Harrisburg , PA and Cherry Hill , NJ . Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.

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