HR professionals are finding themselves in tough situations over accommodating workers’ mental health if an insurer casts doubt on whether the disability is legitimate.
With no access to information about an employee’s mental health diagnosis, HR has to accept a doctor’s word that they require accommodations for their condition.
But at times, insurers will refuse the same worker’s application for short-term disability coverage – and the employer can’t find out why.
A legal expert says that’s a major issue for employers to have to navigate.
“You’ve got the disability insurer saying that this person doesn’t meet the criteria for the application for [coverage], but you have the employee saying ‘but my doctor says I can’t come back to work’ … and the employer is stuck in the middle without sufficient information or disclosure or, frankly, in more cases than not, expertise, to come to an independent judgment,” Borden Ladner Gervais lawyer Matthew Certosimo says.
“That puts them between a rock and a hard place.”
When it comes to accommodating such an employee, Certosimo says HR should proceed cautiously – and avoid rushing to decide what can or should be done.
“My advice has always been to view these things as being less of a sprint and more of a marathon, and to be patient. In the first go-around, there may be far too little information to be able to come to any kind of conclusion one way or the other as to how to handle the situation.”
An employer is entitled to ask for more information, including seeking direction from the employee’s doctor about what can be done to accommodate their return to work.
They can also consider an independent medical examination if they believe the employee’s doctors are being too subjective, Certosimo says.
“Eventually we start to push the matter to the next level of analysis, and eventually to the next one after that.”
That said, Certosimo urges employers to broach the issue with sensitivity – as they could be accused of harassment if an employee is upset by their pursuit of further information.
“There’s no doubt about it, there’s a number of risk points that need to be handled carefully.”
Matthew Certosimo will speak on mental health and workplaces at the Employment Law Masterclass
on September 25, 2017.
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