As an employer, you have done your due diligence, you've brushed up on your employees' rights and you've addressed the values and conduct of an employee who is suspected of having a mental illness. You believe that you have done what you can, but you are becoming concerned about someone's behavior that may indicate that he has a mental disorder.

There is a fine line between being supportive and invading people's privacy. You will want to accommodate your employee without inquiring about their diagnosis. The yardstick is whether they are a danger to themselves or others, like your customers, employees, vendors, etc. and if you need to intervene. The key for an employer is to take action on what the employee did or said, and not on his condition. Focus on the behavior and not the employee's medical condition. Coach and discipline on the code of conduct by focusing on the individual's actual behavior, not on the cause of the behavior.

If an employee makes a comment or posts something on Facebook about wanting to hurt someone, the employer has an obligation to respond to the threat. A failure to act can make the company liable under several negligence theories, like negligent hiring (something in someone's background) or retention (now that the person is hired and has done something that should be grounds for termination). You have an obligation to investigate the behaviors to make a determination on whether the employee is a risk. When an issue is deemed severe or serious, you have an obligation to report it to authorities. There is an obligation to take corrective action when necessary.

According to Dennis A. Davis, Ph.D. Director of Client Training at Ogletree Deakins there are different kinds of mental health challenges, which require different approaches. For instance when an employee is absent from work for an unusual length of time, you may call the police to ask them to check on the welfare of that employee. How the manager responds will have a lot to do with what the manager is seeing in that employee. The challenge is that the employee in question has rights, as do the other employees. You must think about your obligations to all parties. Here are few things that you should do to alleviate the problem based on your inherent obligation to your employees:

Get Help for Yourself

Davis advises making sure that you are not acting in a vacuum when you are faced with handling a situation that may be caused by a mental illness. Before doing anything impulsive, consult with others and see if they notice the same behavior. Become as informed as possible on the behaviors that are disruptive or impacting the employee's performance. Depending on the size of your organization you may consult with HR or secure HR services from a consulting firm or law firm.

Most importantly, please understand that you don't want to address this matter like any other performance issue because while you may have responsibilities, the employee has rights. As a small business you have to have some kind of resource such as an outside consultant to advise you or an attorney on retainer, but the most important thing is to recognize a problem that could present potential liability. The potential landmines are significant enough to seek outside support.

Show Empathy and Support

When approaching the employee first, show some compassion and help them find some community resources. The manager should be fully informed on what options are available to the employee and be well versed on what the company can offer.

When an employee is not performing there is a process of analysis that should take place. According to Pam Beckerman, Sr. HR director for Jabian Consulting, through discussion determine whether the problem is a training or coaching issue, and then you ask if something is going on to refer them to a counselor. Pull an employee whom you are concerned about aside and check in with them. If you are unable to get anywhere, contact HR which will have a fact finding and problem solving moment.

Assume good will and good intent and try to find resources and the right support for that employee. Make sure that your employee will get the full benefit of medical coverage, i.e. short term or long term disability. Make sure policy provisions are applied legally and fairly. If the behaviors that you are observing are problematic, recommend that they get in some kind of treatment program, whether voluntary or involuntary. The first conversation is how are you and what support do you need. Then there is a behavioral description to address the organization's concern. There is a diagnostic piece up front. Ask do you need help, do you need some time off, or do you need a referral?

You will need to work with the person to arrive at a solution. Sometimes a little kindness can get you far. Treat the employee with respect and compassion. Often, people want to simply discard the employee and treat them unfavorably which can cause triggers and hostility.

Refer to a Professional Provider

When you are prepared to have a conversation with the employee take the approach of how the employer can assist them. Address your concerns and offer the opportunity to assist. If an employee comes forward, generally most large employers have an Employee Assistance Program to which you can refer them. Though small businesses usually don't have such resources they would do well to see what's available through their employees' medical plan (if they have one) or what is available, for free, in the community.

You will initially coach them, then discipline for an observable behavior, and then recommend that they get help. You may be in a position to have a voluntary, mandatory or condition of continued employment agreement. If someone demonstrates an unacceptable behavior, document that unacceptable behavior. You may say to them that he needs to do something about that specific behavior, and that you are going to recommend that he sees a professional mental health provider. You have several options:

  1. Voluntary--Give them resources to tap into on their own.
  2. If it is severe, recurring or the person acknowledges they have a problem, you can issue a final warning and mandate that they must go to the Employee Assistance Program.
  3. Mandatory with evidence of following provider regimen. They sign an agreement that they will seek help and the provider supplies the employer with an update indicating that the employee is following a regimen.

Discipline by Removing

There is always a trail with warning signs. You may find the employee to be threatening, making comments that can accompany some mental health challenges. If you find that there is not a whole lot you can do to stop the behaviors, you can discipline or remove under the harassment or violating a value or code of conduct. This is extreme but you can take proactive measures in avoiding or disciplining under a workplace violence policy. This is usually used after everything else has been exhausted.

Published on: Sep 9, 2015
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