Benefits and HR managers are used to handling accommodation requests for an array of medical issues. But handling mental health issues are especially tricky — and filled with legal pitfalls.

As employees have become more aware that mental health issues like depression and anxiety are considered medical conditions, accommodation requests have shot up dramatically. How far does your organization need to go to honor such requests?

As long as the employee’s anxiety can be documented medically and unless honoring the request would create extreme economic hardship for your organization, you must honor the request. It’s also crucial to look at the employee’s job description. The key issue to look at is whether the employee can still perform essential job functions.

Also, the employee may not need a permanent accommodation. Example: He or she has started taking a new type of anti-anxiety medication.

Courts have ruled that ADA permits employers to obtain enough information from employees’ mental health provider (psychiatrist, psychologist, licenced clinical social worker, etc.) to determine whether an accommodation is needed and, if so, for how long.

Keep in mind: The purpose of ADA is to provide equal – not preferential – treatment to employees with physical or mental disabilities.

Reasonable vs. unreasonable requests

Legally speaking, mental health conditions are protected under the Americans with Disabilities Act (ADA). That means your organization must honor any reasonable accommodation request tied to a mental health issue. But what’s considered reasonable and unreasonable?

A reasonable request would be something like, “I have an anxiety disorder and my therapist says that I need to limit my work travel.”

An unreasonable accommodation request: “My therapist says my boss is the cause of my depression. I need a new supervisor.”

Even if the accommodation request is unreasonable, you may still have additional legal obligations. In the example above,  you may have a discrimination – rather than accommodation – case on your hands.

Key question to answer: Did the supervisor single the employee out for abuse or ridicule due to his or her mental-health condition? 

MHPA compliance

The Mental Health Parity Act (MHPA) also protects employees in most organizations. MHPA requires that your annual or lifetime dollar limits on mental health benefits (including through your EAP) be no lower than the limits for medical benefits offered through your firm’s health plan.

Even so, you still have discretion regarding the extent and scope of the mental health benefits you offer to employees and their families. This includes sharing the cost of premiums, limits on numbers of visits or days of coverage, and requirements related to proving medical necessity.

Supervisor training is crucial

In many cases, supervisors’ level of education and training in handling the challenges of mental health issues is your best defense – or biggest risk – in avoiding lawsuits. Experts recommend making it a top priority to train supervisors to follow three basic rules:

• Refer employees to the EAP program. Don’t play amateur psychologist if you suspect an employee has a problem.
• Direct employees’ accommodation requests and benefits-related problems (e.g., scheduled therapist appointments clash with work schedule) to HR/Benefits, and
• Avoid making – and don’t tolerate – inappropriate jokes or comments at the affected employee’s expense.

The last issue may be a sore spot with supervisors. But it’s critical. Employers have lost or been forced to settle multi-million dollar mental health discrimination lawsuits because of someone’s “innocent joke.”

On a nationwide basis, fraudulent long-term disability claims are a $5.5 billion drain on employers. The cost includes claim payouts, subsequent premium increases, lost productivity and staffing problems. The good news: There are legal ways to fight back.

None of the following factors automatically justify a full-scale investigation. But they add up. The more factors in place, the greater the likelihood of a false disability claim:

• The worker is a new hire and has a history of short-term employment
• He or she was recently demoted or clashed with a supervisor
• The employee is unusually aggressive about the claim (e.g., hires a lawyer as a first step) and/or
• The story about the cause or severity of the injury keeps changing.

According to experts, either of the first two factors in combination with either one or both of the latter two could provide cause to probe a little deeper into the claim.

Go through your carrier

What should you do if think you think the claim is fishy? Alert your plan carrier about your suspicions and let the insurer’s investigation department handle it.

The biggest mistake that employers make in these circumstances is to simply take matters into their own hands. Why? Because even if you uncover evidence of fraud, the information might not hold up in court.

When it comes to obtaining and using employees’ health info, your firm’s plan has more power than you may think.

Under HIPAA, your plan is allowed to obtain health info for the purpose of controlling your health costs. And there are a host of legal uses of that info for that one purpose.

Questions you can answer

Your plan is entitled to obtain and review a sampling of people’s personal health info to answer all of the following plan cost-related questions:

• Are employees getting the right treatment for their health conditions?
• Which network doctors aren’t communicating treatments with each other, wasting resources?
• Are employees compliant with their prescription drugs?

In short, you’re allowed to use the info to more accurately predict upcoming claims and costs in the short-term future. What you can’t do with the info is make any employment-related decisions with it.

Experts debate if the prohibition includes charging smokers or other at-risk populations higher premiums. But you can always use it when shopping the cost-effectiveness of different health plans or for making your wellness program even stronger.

Wellness program implications

Under HIPAA and ERISA, you’re allowed to use health data as the starting point for having employees contacted regarding their health issues. Based on the info you obtain, you can hand-pick people for educational mailings about specific health issues.

Your wellness program manager is allowed to find out if an employee has a certain health problem (such as asthma or diabetes) and hasn’t sought a program to treat that issue.

Reminder: If you offer financial incentives as part of your wellness program, be aware that HIPAA’s non discrimination rules require you to wipe the slate clean each plan year.

Legally, it’s still the safest policy to stay hands-off personal health info when it doesn’t relate to certifying FMLA or accommodating ADA. But it’s good to know HIPAA’s privacy rule is usually on your side in the battle to control health costs.

Under HIPAA, your plan is allowed – without employees’ consent – to obtain individual health info (not just aggregate data) for the sole purpose of using it to study ways to control long-term health costs.
And there are a host of legal uses of that info for that one purpose.

Questions you can answer

Your plan is entitled to obtain and review a sampling of people’s personal health info to answer all of the following plan cost-related questions:

• What employees are and aren’t getting the right treatment?
• Which network doctors aren’t communicating treatments with each other, wasting resources?
• Which folks are and aren’t compliant with their prescription drugs? And
• Are the current health issues of your at-risk employees likely to ones of concern a few years from now?

In short, you’re allowed to use the info to more accurately predict upcoming claims and costs in the
short-term future. What you can’t do with the info is make any employment-related decisions from your findings.

Experts debate if the prohibition includes charging smokers or other at-risk populations higher premiums. But you can always use it when shopping the cost-effectiveness of different health plans or for making your wellness program even stronger.

Wellness program implications

Under HIPAA and ERISA, you’re allowed to use personal data as the starting point for having employees contacted regarding their health issues.

Based on the info you obtain, you can hand-pick people for educational mailings about specific health issues. You’re even allowed to have a third party tell you if employees have certain health problems (such as asthma or diabetes) and haven’t sought programs to treat the condition.

If you offer financial incentives as part of your wellness program, be aware that HIPAA’s non-discrimination rules require you to wipe the slate clean each plan year.

Legally, it’s still the safest policy to consult with an attorney before using health info apart from routine FMLA certifications or accommodating ADA. But it’s good to know HIPAA is usually on your side in the the battle to control health costs.

Studies show that when it comes to choices about when, where and how to seek out care, most people make emotional decisions, not rational ones.  When people ask their doctors questions about their care, it’s far more likely to fall along the lines of “Will I be OK?” rather than “How much will it cost?”

There’s also a tendency for people to follow their doctor’s recommendations. Think about how long it’s taken to educate employees to ask about the availability of generic drugs and teach them that  generic provide the same benefits as name brands (especially ones that are advertised on TV).

When cost of care does enter into people’s minds, it often arises in ways that employers DON’T want: avoiding care altogether out of fear of not being able to afford out-of-pocket costs (i.e., deductibles).

Most employers are aware of these obstacles. The problem has been overcoming them. Usually the employee education burden falls directly on the shoulders of already overstretched HR/benefits managers.

It used to be that employee education meant teaching employees about the health (and other) benefits available to them and how to access them.  Today, the task also includes the responsibility of teaching folks how to research their own care and interact with their doctors. Finance types rarely appreciate just how difficult this chore really is.    

Sensitive subjects

Here’s an example of the difficulty HR/benefits faces in playing the role of teacher:  When discussing the need for preventive care (one of the hallmarks of consumer-driven healthcare), is it your responsibility to discuss potentially sensitive subjects?

Much like medical benefits themselves, medical practices constantly evolve. In the last couple years, several medical boards and regulatory groups revised their guidelines for preventive healthcare. One of the most controversial changes in the guidelines: providing routine sexually transmitted disease (STD) screenings for adolescents.

Not every carrier has elected to add STD tests as a standard preventive-care benefit for employees’ dependents. But, among others, many Blue Cross plans now provide first-dollar coverage for the screenings.  What should YOUR role be in teaching employees that the benefit is available to their dependents? Do you:

• simply pass the info along, without further context or explanation, in an e-mail or memo?
• rely on employees who need the info to find it in the benefits newsletter the carrier sends out?
• deal with the discomfort of telling employees to talk the sensitive issue over with their teenage kids and their doctors?

Any of these approaches has the potential to backfire. From a purely financial/consumerist point of view, we know that the first two options rarely work.  But what employer wants to risk resentment (or worse) from employees by recommending they tell their teenagers to get tested for STDs?  

Bottom line: It’s easy for the bean counters to stress the cost-saving advantages of preventive care. It’s easy for social advocates to say this sort of education is part of corporate responsibility. These people aren’t the ones who deal directly with your employees.   Frankly, we’d love to see one of THEM volunteer to lead a discussion on  STD screenings at your annual health plan meeting.

Many EAPS fall into a common – and dangerous – category: Management thinks the program is great, but employees think it’s a waste. But it doesn’t have to be that way if you have an EAP or are considering one.

Seventy-three percent of all firms (59% of small employers) have an EAP. But how well does the typical EAP work? Not as well as we’d hope. A Mid America Coalition on Health Care study found:

• just 50% of 6,400 workers surveyed said they’d use the EAP if they felt overwhelmed by personal issues, and
• one-third said they didn’t even know how to access its resources.

The good news: Firms like yours have seen dramatic improvements in three relatively simple steps

1. Employee attitude surveys

The best starting place: Take the pulse of your employees with a short, confidential attitude survey.

Objectives: Ask employees if they know how to use the EAP’s resources. Then test workers’ knowledge and opinions of depression and other personal issues that may affect their workplace performance and/or safety. In the final section, find out how employees would handle a serious personal issue.

In other words, find out where your people would likely turn for help. Would workers seek out the EAP? Would they prefer to discuss the issue with their family doctor? A mental health professional?

The Mid America Coalition’s survey remains an excellent design model from which to craft a survey for your own employees.

2. Promote EAP through education

Your survey data should help you pinpoint areas where employees need more education about your EAP. Some awareness-boosting techniques that have gotten results:

• Lunch-and-learn sessions. Possible topics include dealing with personal-finance stress, caring for elderly parents, understanding depression or dealing with a dependent who has potential mental health issues.
• Employee newsletter. If you have a benefits newsletter, spotlight the EAP from time to time. Some companies without newsletters have done e-mail campaigns or targeted mailings instead.
• Workplace posters spotlighting EAP. The ones that work best are often posters designed around a specific theme (e.g., anxiety about personal debt) rather than a general “need help?” message. In addition to posters, you may want to distribute wallet cards with EAP contact info.

Need help finding educational material? There’s lots of free EAP-related handouts and FAQs here. Remember: When doing EAP education, constantly remind employees that the program is strictly confidential.

3. Work with supervisors

For legal reasons, supervisors need to tread carefully when they suspect an employee has a mental health issue.

What you don’t want: supervisors taking disciplinary actions without consulting HR or playing amateur psychologist and “diagnosing” the employee’s problems. Here is a PDF of some proven tips and talking points for doing supervisor-specific EAP education.

HIPAA compliance: Beware non-discrimination issues

HIPAA’s non-discrimination rules impact both mental health benefits and general health plans. Under current interpretations, health plans can no longer have benefits exclusions that deny benefits for injuries resulting directly or indirectly from pre-existing mental health issues.

That’s true even if the psychological condition wasn’t diagnosed until after the injury and even if the injury was self-inflicted. Example: Suppose an employee gets hurt in a workplace accident he or she caused. After the fact, the employee is diagnosed with a mood disorder that previously escaped detection by the employee’s doctor.

Under current regs, HIPAA-covered plans can’t deny benefits. This puts employers in a bind. Mental health issues like depression, anxiety or bipolar disorder are among the medical conditions that’re most likely to go undiagnosed or underdiagnosed.

That’s why, in most organizations, having a strong EAP is one of your best compliance tools.