As more details emerge about the troubled past of First Officer Andreas Lubitz – the co-pilot at the controls of the Germanwings flight that crashed in the French Alps in March – employers worldwide are faced with pressing questions that should bring renewed focus toward their policies regarding identifying and managing mental illness in the workplace.

How can employers be supportive of employees with mental health issues?

The Germanwings co-pilot hid important information regarding his mental illness from his employer. Employers should be aware of the stigma that many employees may feel will result from their reporting a mental illness. The more proactive an employer can be to reduce this fear, the more likely it is that an employee will come forward. In fact, this is exactly why at least some pilots with mental health issues are not automatically barred from flying – the rationale being that employees who fear reprisals or different treatment will simply hide their problems. Employers should consider offering employee assistance programs, or access to mental health resources, and ensure that there is a confidential process for employees who want to seek help or otherwise report their mental illness, or any medical issue, to their employer. A greater show of support will foster an open environment.

Can an employer in the U.S. “test” the mental health of an employee or applicant?

The answer is not clear in every case, but employers should be aware that they do have the ability to require employees and applicants to undergo mental examinations in certain circumstances.

This is a complex area. Just as there are laws in the European Union (EU) which protect employee privacy and restrict what information an employer can obtain about an employee’s mental (and physical) health, many of the same restrictions also exist here.

On the federal level, there are two laws to consider: the Americans With Disabilities Act (ADA), which prohibits discrimination against an employee based on a disability, and the Health Insurance Portability and Accountability Act (HIPAA), which protects and prohibits disclosure of patient medical records.

The ADA includes mental health problems as a “disability.” In addition to prohibiting discrimination, the ADA also restricts when and under what circumstances an employer may require an employee to undergo medical examinations. The ADA does not specifically address psychological tests. However, it is likely that such a test would be treated as a “medical examination” for purposes of the law. At least one court did hold, in 2012, that a psychiatric examination was a medical test prohibited under the ADA.[1]

An employer generally cannot conduct any pre-offer medical testing of job applicants under the ADA. Once an employee has been hired or provided with a conditional offer of employment, an employer is still restricted from requiring employees undergo a medical examination or mental health evaluation in every case. The average employer may only conduct a medical examination to the extent it is “job related” and “consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). This means that the medical test must be designed to measure the employee’s ability to do the job in question.

For industries where public safety is an issue, the decision to require medical and mental health evaluations is easier, and is even required in many industries by law or regulation.[2] Outside of industries where medical examinations are required by law, employers must be careful to make a connection between the employee’s ability to perform his or her job duties, and the required medical or mental exams required. Even if not required by law, many employers have employees who do work that is potentially dangerous and could subject themselves, other workers, or members of the public to risks. This “consistent with business necessity” principle applies to applicants and employees alike – periodic medical or mental examinations of employees must have the same justification as applicant testing. A general medical examination policy must not be applied selectively – employers must require evaluations of all persons in affected positions.

Where a medical or mental examination is properly conducted, an applicant or employee can be rejected or terminated if it turns out that she has an impairment which prevents her from performing an essential function of the job, and the employer can show that it could not reasonably accommodate that impairment. Employers must consider accommodation or possible leaves of absence under the Family Medical Leave Act or related state leave laws for current employees. Employers should review their policies, and ensure that they include a requirement that employees receive “fitness for duty” certifications from their physicians following a medical leave of absence.

What can you do if an employee is behaving strangely, or others report that they have done something to make them “nervous” or afraid?

In industries where regular medical evaluation may not be appropriate because the average job duties do not demand it, employers may still be curious about what they can do to address disturbing behavior from an employee. Employers should know that they can act, legally, if they have reason to believe that an employee may commit an act of violence and hurt themselves or others.

In 2013, we wrote an article detailing what measures an employer could take to address the behavior of a potentially violent or dangerous employee in the workplace. Many of those same principles still apply today.

If an employee behaves in an irrational or emotional manner, such that it causes the employer to legitimately question his ability to perform the essential functions of his job, courts have held that a psychiatric examination is lawful. See Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306 (11th Cir. 2013) cert. denied, 134 S. Ct. 655, 187 L. Ed. 2d 449 (2013). In Owusu-Ansah, the employee-plaintiff did not claim to be disabled, but did have several emotional outbursts in the workplace. The Eleventh Circuit held that the employer had acted lawfully in requiring him to undergo a psychiatric test, noting for one that “an employee’s ability to handle stress and work reasonably well with others are essential functions of any position. . . Thus, this court held that the evaluation was consistent with business necessity.”

Lingering Issues in a Medical Minefield

Of course, the above cases and principles do not solve the problem of what to do about an employee like the Germanwings co-pilot – who avoids his legal duty to report and does not behave irrationally, but might be hiding some mental illness which could flare up at a later date. This is not an easy question to answer.

One solution is to use the testing that is not considered a “medical examinations” at all under the law[3]. For instance, an employer can lawfully:

  • test for illegal drugs in the system, as these are not considered “medical examinations” under the ADA (note that urine or blood tests which measure alcohol use ARE considered medical tests);
  • require applicants and employees to take personality tests, which measure traits like honesty, preferences or habits; or
  • require applicants and employees to take physical agility tests, to measure their ability to perform job-related tasks.
While potentially useful, these kinds of tests also have their limitations and risks. Their results often depend on whether the employee is honest when she speaks to the psychiatrist. If an employee is dishonest and refuses to disclose whatever symptoms or thoughts she is having, it is not clear how the issue would be uncovered.

In addition, employers need to be wary that employees can have claims under the ADA based on being “perceived as” mentally disabled – not just because they are actually mentally disabled. If an employer uses the results of a personality test to deny employment, end employment, or treat an employee differently from others in any way, it’s important to be able to point to how that action is, on the basis of the test, “job related and consistent with business necessity.” If an employer cannot make that case, the affected employee may well have a claim that she suffered an adverse employment action because she was “perceived as” disabled – which, if true, would likely violate the ADA and similar state laws.

Finally, employers should remember that much of the information they gather as the result of physical or mental tests is subject to rigorous protections under employee privacy laws. For example, employers must be knowledgeable – and very cautious – about their obligations under HIPAA. All medical information collected about an employee must be kept separate from the personnel file, in a secure (locked) area where only certain people are given access.

Employers should contact Kelley Drye’s Labor and Employment Group to navigate this medical minefield, and take advantage of our broad experience crafting disability policies and careful advice on case-specific problems.

[1] Kroll v. White Lake Ambulance Auth., 691 F.3d 809 (6th Cir. 2012).

[2] Under FAA regulations, a pilot must undergo a medical test before she/he is hired and then must be tested annually during employment. After age 40, pilots must undergo a physical every 6 months.

[3] A medical examination, as defined by the EEOC, is: administered by a health care professional; interpreted by a health care professional; designed to reveal an impairment to physical or mental health; is invasive, and measure end employee’s performance of a task or a physiological response to performing a task