Employers can experience huge losses as a result of unproductive employees, workplace acrimony and, on occasion, serious physical violence and death. Of course, employers and Employee Assistance Programs must take reasonable steps to promote a safe work environment and protect workers from the consequences of employees who suffer from psychological problems.
Employee Assistance Programs and employers can safeguard the workplace with psychological fitness-for-duty (FFD) and violence risk (VR) assessments. These evaluations, typically performed by psychologists and psychiatrists, can help the employers make managerial decisions based on sound knowledge about an employee's psychological status. These evaluations are not the same as EAP employee mental health assessments. With evaluations performed by the EAP, a helping relationship is established with the employee. In this role, EAP professionals might give an employer or employee considerable advice about recovery. In contrast, FFD and VR assessments are performed primarily to help the employer make managerial decisions based, in part, on an employee's psychological status. This article will briefly review some facts that employers and EA professionals should know about these exams to safeguard and promote a healthy workplace.
It is important that the psychologist or psychiatrist who performs the VR and FFD assessments not be a professional who will provide treatment to the employee. The roles of a treating doctor and a doctor performing a FFD or VR virtually always conflict with each other. First, this is because the treating doctor, whose primary allegiance is to his/her patient, does not always have an obligation to protect the best interest of the employer. Consider the plight of a treating doctor whose potentially violent patient could experience increased self-esteem as the result of a return to work. The dilemma facing that doctor is whether s/he would recommend a return to work to help the patient (despite the risks to the employer) or would that doctor suggest that the patient stay away from the workplace to protect the employer, yet sacrifice the patient's opportunity to improve self esteem. The problem obviously is that the employer who hires the treating doctor forces that doctor to have two clients: the employee and the employer. The interests of those two parties are not always the same.
These days the vast majority of Employee Assistance Programs do not perform FFD and VR on employees. These forensic services are generally not considered part of the EAP/Employer contract. Further, Employee Assistance programs are concerned that their employees may be confused as to their role, and perhaps become reluctant to divulge personal information to the EAP when they need to in the future.
Further, treating doctors are usually not formally trained to assess mental health issues within a medical-legal (forensic) context. The results of these evaluations should be sound enough to withstand close scrutiny, should they ever come to the attention of the court.
Despite their mandated responsibility to provide non-threatening work environments, there are many employers that are reluctant to refer employees for evaluations to determine whether they pose a workplace risk. To encourage employers to be proactive in ensuring workplace safety, State and Federal legislators have encouraged employers to prevent hostile workplace environments. One example is the Federal Occupational Safety and Health Act, which requires employers to work towards workplace safety.
Despite government rules such as these, employers often have a number of concerns. These include:
1. They do not have the legal right to require employees to submit to psychological and psychiatric evaluations. Fortunately, the Americans with Disabilities Act encourage employers to take appropriate action when employees become a "direct threat to the health or safety of the individual or others . . .
2. Some employers are worried that employees will be angry about having an evaluation. While this may occur, many employers find that employees report unexpected benefits of participating in these evaluations. While their purpose is not to treat the patient directly, many doctors, for example, will offer treatment suggestions that the employee's own doctors can follow to assist that employee in the future. Further, if they are presented positively, many employers are able to impress upon their staff that these assessments are their means to work with valuable employees who may be going through a temporary period of difficult life stresses. This is sharp contrast to employees concerns that these evaluations are punitive in nature.
3. Some employers are concerned that the doctor who evaluates the employee might determine that an employee is safe to return to the workplace when the employer has reason to believe that that is not so. To best prevent this problem, it is important to select doctors who will dialog with employers both before and after the assessment takes place. This way all of the information available to the employer might become available to the doctor, thus minimizing this risk. Further, this helps ensure that the doctor's suggestions for return to work accommodations, if any, are practical.
4. Some employers worry that the receipt of confidential medical information about their employees could expose the employer to lawsuits. This confidential information may include employee diagnosis, marital problems, and medications. Clearly, it is a risk for employers to have this sensitive information because it may appear at a latter time that the employer made an administrative decision (such as to dismiss and employee) because of the potentially prejudicial medical information in the doctor's report. Unless the employer maintains the FFD report in a separate medical file, under the oversight of a medical professional, doctors should place as little medical information in the FFD report as possible. It is a good policy for doctors to simply offer direct responses to the referral questions, giving the employer practical advice, while withholding medical information which they may give, as appropriate, to treating doctors at a later time.
The doctors who perform these forensic evaluations need to follow a number of procedures to ensure that the evaluation is done correctly. First, they need to ask a wide range of questions about the employee's social and psychological history. Further, in virtually all cases, they should give objective psychological testing to clearly measure the presence and severity of psychological problems, as well as to assess employee truthfulness regarding their psychological symptoms. Further, it is a very good policy for the doctors to speak with the employer, as well as other collateral sources (such as a spouse or supervisor) for more information. Medical records as well as detailed employee performance records are often invaluable.
It is critical for the employer to present the doctor with well-written referral questions that do not lead the employer to one opinion or another and are likely to result in useful information. These can include direct questions about:
1. Whether employee presents an increased risk of violence or accidental injury.
2. The nature of the harm that might occur.
3. Specific steps the employer might consider to reduce the likelihood of problems.
4. Suggestions for treatment or educational plans.
5. Treatment recommendations.
6. Suggestions for reasonable accommodations at the workplace.
7. Information about potential need for time off work.
8. Future behaviors that the employee might show that would indicate the need for additional assessment or intervention.
