Hoosier Banker 37 (e.g., failure to accommodate a disability, workplace violence) and can have other negative consequences (e.g., poor performance, coworker complaints). This puts employers in a conundrum, because even though the law expects that an employee will tell their employer of a health problem that is affecting their work performance, an employer’s obligation to provide a reasonable accommodation may be triggered without a direct request by the employee. Thus, employers should be alert to employees who are showing signs of mental illness, but must also be careful not to jump to conclusions or to ask unlawful questions about the employee’s mental health, as such an inquiry may be deemed an unlawful medical inquiry. In most cases, an employer should focus on the employee’s observable behavior and performance issues and avoid any medical inquires. It is permissible to ask generally about the employee’s well-being. For example, if an employee has been observed mumbling to themself, crying, showing signs of stress or burnout, or acting strangely at work, an employer can address those observed behaviors and can ask if the employee is alright. If the employer has an EAP, the employer can remind the employee that there is an EAP and encourage them to reach out of they need assistance. But what if an employee threatens suicide or may pose a threat to the safety of others? The Americans with Disabilities Act permits employers to make medical inquiries if “job-related and consistent with business necessity.” This means that an employer can ask medical-related questions (or require an examination) if the employer has reason to believe that (1) the employee poses a “direct threat” to self or others because of a medical condition; or (2) the employee’s ability to perform the essential functions of their job is impaired because of a medical condition. The employer’s belief must be based on objective evidence. Thus, thorough, fact-based documentation of an employee’s behavior and any concerns voiced by coworkers is crucial. In Painter v. Illinois Department of Transportation, the Seventh Circuit Court of Appeals (which is the federal appellate court with jurisdiction over Indiana, Illinois and Wisconsin) held that an employer can require an employee to undergo a psychiatric examination if the employer has a “reasonable belief based on objective evidence” that the employee is unable to perform the essential functions of the job, or if the employee will pose a threat to self or others because of a medical condition. In Painter, the employee had exhibited signs of paranoia. She began snapping and screaming at her coworkers. She also gave coworkers blank stares and intimidating looks and began mumbling to herself and banging her desk drawers. Coworkers were distressed by her behavior and fearful that she might become violent, though she had no history of violence. The employer sent the employee for a psychiatric exam, and the employee was ultimately deemed unfit for work because INDIANAPOLIS CHICAGO COLUMBUS ST. LOUIS MILWAUKEE A FULL SERVICE LAW FIRM WITH A SIMPLE PROMISE, PUT YOU FIRST. 201 North Illinois Street, Suite 1400 Capital Center, South Tower Indianapolis, Indiana 46204 }ɘʇȠȞȤɉȡȣȡɉȡȞȝȝʇɓʇ4ɘʇȠȞȤɉȡȣȡɉȡȞȝȞ www.smithamundsen.com
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