EMPLOYING THE MENTALLY ILL

‘Reasonable’ approach
could help workplace

But the state business director
fears ‘a new reason to sue’

By Jim Witty
Star-Bulletin

One of every five people in Hawaii suffers from some kind of mental health problem, from minor depression to drug and alcohol addiction and schizophrenia. Employers take heed: The work force mirrors that figure.

A new federal directive aimed at encouraging employers to hire people with psychiatric disabilities and accommodate their conditions has Hawaii mental health advocates heartened and some business boosters worried.

Last March, the Equal Employment Opportunity Commission issued guidelines clarifying a law that's already on the books: You can't discriminate against otherwise qualified workers with mental illness.

The 38-page report sets forth limitations facing those with psychiatric disabilities such as manic depression, anxiety disorders and schizophrenia, and how employers can accommodate them. The guidelines place mental disorders in the same category as physical impairments under terms of the American Disabilities Act of 1990.

For example, if an employee is blind, employers are required to take "reasonable steps" to accommodate him or her, such as providing braille placards in the building's elevator. The same goes for someone with a mental illness.

That could be providing a job coach for a schizophrenic or flexible work hours for someone who suffers anxiety attacks.

"Mental illness is common," said Greg Farstrup of the Mental Health Association in Hawaii. "Employers already have employees with mental health problems. The latest estimate is that U.S. businesses are losing $24 billion a year in lost productivity and absenteeism because of mental illness. These guidelines can save companies money ... The key word in all of this is reasonable."

Tom Smyth, director of the state Department of Business, Economic Development and Tourism's Business Support Division, fears the guidelines "open up a new reason to sue."

"It's not a law," said Smyth. "It just says you have to defend your actions if you're challenged on this ... Now all of a sudden, I've got Joe or Sally who punches the customer out or tears his clothes off or acts irrationally, and they say now you have to accommodate me because mental illness is covered."

Smyth said the guidelines will affect employers in hiring and firing workers and in accommodating existing employees.

But not in any drastic way, said Honolulu attorney Lunsford Dole Phillips, who has handled many cases involving accommodating physical disabilities under the Americans with Disabilities Act.

"If the disability is so debilitating that the employee can't produce sufficiently, there's nothing in the ADA that says the employer can't get rid of that person," Dole Phillips said. "That's widely misunderstood ... It's fair to say that the cost to employers will be even less than the minimal cost of accommodating physically disabled persons."

But Smyth argues that the mental health guidelines add a whole new dimension to ADA compliance. Up to now, the consequence to businesses has been purely economic (build a wheelchair ramp, revamp a restroom). Smyth said that now employers, who are forbidden from inquiring about an applicant's mental health history, will have to "second-guess hiring."

"This has the potential of a person hurting themselves and turning around and suing because you let them hurt themselves," said Smyth. "Absurd ... The danger is so great if you guess wrong. Because the employee can hurt a customer, a fellow employee or themselves. It's pretty hard to sterilize the workplace."

Smyth also believes the guidelines will have an impact on worker's compensation claims. Stress, he says, has become a "leading cost element" in worker's compensation. But like back problems, stress tends to be nebulous; it's difficult to pinpoint any one cause.

"Was it caused by work, exacerbated by work or caused by something outside work?" Smyth asked.

Smyth also wonders whether businesses will be "forced to accept a lower standard of conduct in order to avoid litigation."

Craig Willers, who takes medication every day to control his schizophrenia, doesn't expect lower standards but said some flexibility would be nice.

Willers said he could have benefited from a little added understanding from his employers at the supermarket where he's worked as a journeyman clerk the past dozen years.

"I'm not as fast getting around because of the sedating effect of the medication, but I make up for it in terms of efficiency and keeping my nose to the grindstone."Still, he claims he's been "shut down" from moving into a management position. Willers said he came very close to filling a lawsuit based on the Americans with Disabilities Act but decided against it at the last minute. Instead, he went back to school and plans to become a psychiatric nurse, a profession he assumes will be more enlightened.

Willers welcomed the EEOC guidelines as a necessary check on businesses.

"If you leave businesses alone to do what they want to do, nine times out of 10, I think they'll do the wrong thing."

Smyth advises employers to train staffers to be aware of the signs of mental illness and to document "more thoroughly than you did before."

Farstrup said it's been an uphill battle fighting the stigma of mental illnesses and the perception that, since they often don't have a physical manifestation, they are somehow not genuine diseases.

Farstrup said that in addition to being common, mental illnesses are diagnosable and treatable.

"Mental illnesses are real," he stressed. "People aren't faking it."