Forced medical leaves

allison13

I manage the Labor Relations section of the NJ Dept of the Treasury. On occassion we have encountered employees with suspected mental health problems and after accumulating evidence of such, under State rules, have placed the employee on paid leave pending the outcome of an evaluation by a State appointed physician. Once we receive the medical report, if treatment and a leave are prescribed (and that is usually the case), we then place the employee on a medical leave of absence and order that they obtain treatment and submit proof of same to our HR office and also medical clearance before they can return to work. At this point, we require the employee to use their accumulated leave time and if they have none, the leave is w/o pay. I have recently been advised that we can not force a medical leave of absence, rather should the employee balk about taking a leave, then we must proceed with disciplinary action for inability to perfrom and suspend the employee w/o pay. How do other folks deal with these types of situations?

Geno

Allsion,

Please forgive me, I'm sorry, but I have to ask this question: Does your question imply that the NJ Department of Treasury's Labor Relations section has neither access to, nor does it employ legal professionals that specialize in employment issues?

allison13

Yes, we do, it is those experts that are soliciting advice. We have always forced employees with non-work related medical and/or mental conditions, that have been diagnosed by our doctor (I won't go into the criteria for sending them for an evaluation here) as being unfit for duty, to use their own sick time and charged via FMLA if applicable. We recently received a decision out of our administrative law office ordering re-instatement of that sick leave. The decision indicates we can not force an employee to take a leave. If after a State physician has determined an employee can't work, that employee disputes our doctor's report (and this only seems to happen in mental health situations), and the employee refuses to go to their own doctor, then the decision states we must pursue disciplinary action for termination...this is not good for our employees or us...by the time a discipline appeal hearing rolls around, the employee, with union support, will likely have seen the light and sought treatment, which is what we wanted to begin with...but now we have incurred the expense of a lengthy discipline process...I could go on and on!!

Dasher

Not sure why one would single out mental illness from bodily illness, if an employee shows evidence of either. I probably would ask if they need time to take care of whatever ails them. Yes, they use leave (that's why we have it), and even Short or Long term disability if they qualify.

If it is a performance problem, handling it as your next to last sentence suggests is appropriate.

If the issue is that it is a mental condition, which I suspect is really the issue here -- handle with care -- how can you tell?

allison13

we don't differntiate, however I have never had an employee with a physical ailment refuse to seek treatment. It is only those with mental conditions that we have this problem with. We have recently received a decision out of our office of administrative law telling us we are required to pay for the leave to seek removal...we can ni longer force a medical leave. I find this to be unfortunate for both the employee and the Department, sicne the discipline process is expensive and what we want is for the employee to seek treatment. Once the discipline process is moving forward, it's a whole other ball game!

marc

Great question with a lot of information to process. I will not address any FML issues since your question did not go there.

We are a small, non-profit human services agency, but in our shop, when we have sent someone home for medical reasons, we insist on a Return to Work note signed by the EEs doctor. In some circumstances, such as treatment for depression or when the physical necessities of the job require it, we will provide the Doc with a copy of the EEs job description. Then the Doc can evaluate the EE's ability to do the job and set any limits that may apply.

Safety in the workplace is important for the rest of our staff and our clients and visitors. It is also not reasonable to return an EE to work if you have questions about their ability to do the job.

I bet you will get more good feedback from other members.

allison13

Thanks, I am! Your advice is how we had previously handled these situations, but have now been ordered by our office of administrative law that we can't force the employee to seek treatment. And we don't even have the right to suggest it. The decision requires us to pursue disciplinary action for inability to perfrom. We are trying decide whether we want to pursue this decision to our appellate division of superior court.

System

"we have encountered employees with suspected mental health problems and after accumulating evidence"

Welcome, Allison13. I see it's your first post.

What was it about the employee that made you suspect mental health problems? Then how did you accumulate evidence? On occasion we have an employee who displays character that is foreign to their norm. Usually the employee is going through a personal crisis and we refer them to the EAP. It can also be an indication of a drug, prescribed or illegal. I think a safer route to go would be to talk to the employee. You have to take it from there. I can understand that you probably can not force a medical leave and would have to handle it from a performance position.

allison13

In this particular case, the employee made several completely ridiculous and unsubstantiated allegation over a period of a few weeks. For example, he claimed to have video of his supervisor going through his home garbage, that management was calling his personal cell phone during off duty ours to "check up on him" and the final straw was when he called my office from his car one morning saying that I must personnally escort him into work and "tell everyone to leave him alone" Very creepy huh? So we had multiple statements from concerned co-workers, supervisors and even myself! He refused to go to EAP early on so eventually, the evidence required to put him on paid leave and require he be evaluated by a State appted phycisian.

Don D

"Once we receive the medical report, if treatment and a leave are prescribed (and that is usually the case), we then place the employee on a medical leave of absence and order that they obtain treatment and submit proof of same to our HR office."

In what situation in your state, in your division of state government, is it allowed/acceptable for you to receive medical reports on your employees? And by what authority do you 'order' that employees obtain treatment. This is so bizarre and foreign to everything I know about the law, state operations and employee relations.

"I have recently been advised that we can not force a medical leave of absence, rather should the employee balk about taking a leave, then we must proceed with disciplinary action for inability to perfrom and suspend the employee w/o pay."

I suspect and hope what you were actually 'recently advised' of was that you have been in violation of several laws and could be held personally liable and that you no longer could do what you had been doing. The advice you have now gotten to treat these as performance issues is solid and sound and strips you of your medical degree with a perceived specialty in psychiatry.

Unless I wanted to enjoy a personal lawsuit, I would never, ever suppose to diagnose an employee's medical condition, mental or otherwise. None of us, no matter what our job title, has any business whatever receiving from a doctor the medical diagnosis and personal, private plan for treatment or psychiatric recommendations of employees. The only, THE ONLY deviation from that would be the limited knowledge we have a right to hold in cases of workers' compensation injuries and illnesses.

As you may know or certainly will surmise, I respond bluntly and to the point and I say what I think, but, what I say has a sound HR best practice basis and not meant to be read as mean spirited. I may be saving you half a million dollars that you probably do not have.

allison13

Thanks...you could read my other responses to see how we got to where we are today. And I appreciate bluntness! I also have been doing labor relations for 20+ years and worked the labor relations units in 2 State Psych hospitals before coming to Treasury. We have a rule in New Jersey State government that can be found in the New Jersey Administrative Code 4A:6-1.4 (e)that states "an appointing authority may require an employee to be examined by a State appointed physician designated and compensated by the appointing authority to determine whether the employee is capable of performing his or her work duties and whether return to employment may jeopardize the health of the employee or that of other employees"

Of couse the employee has to consent to the examination and if they refuse, they can not work until they present acceptable medical clearance.

This guy gave us plenty of statement/evidence that he needed help mentally and quick!

ritaanz

Allison: I have lived in NJ and been in HR over 20 years. I'm curious, under what Sate rules are you able to "accumulate evidence" of mental health problems? If I had known of such rules, I could have opened my own asylum. Is't not just the NJ Dept of the Treasury that lures this assortment of human beings.

By the way, welcome to the Forum. Hang on because sometines the ride gets very bumpy. But...never dull.

allison13

thanks for the encouragement! See my other responses...the evidence that this guy was over the top was over whelming and we knew he needed crisis intervention...we actually drove him to the State Physician for his eval, but unfortunately, he did not fit the criteria for and involuntary committment and the RX was "paranoid schizoid disorder"