Our nonprofit provides services to people with mental disabilities. As part of our mission, we employ former clients. Can we require an employee/former client to take her psychiatric medications as a condition of continued employment?
—Worried and Wondering
Dear Worried and Wondering,
No, you can’t require that.
Once a client becomes an employee, your agency must take off its social service provider hat and wear only its employer hat. Your focus must be on employee performance rather than client health and well being.
The tool you can use to ensure satisfactory performance is effective supervision.
Whether or not your agency is covered by the Americans with Disabilities Act (ADA, which covers places with 15 or more employees) or similar state laws, I recommend using the “interactive process” as a supervisory tool to address any concerns you have with this employee’s ability to perform. The ADA requires covered employers to engage in this interactive process – in-person meetings and ongoing dialogue – with disabled employees to determine if any reasonable accommodations are necessary for the employee to do the essential functions of the job.
If you observed performance or behavior problems, you could use the interactive process to ask the employee for medical certification of any disability, including identification of any limitations she has that may need accommodation in the workplace.
Remember, it is inappropriate to use any of the medical information you had about the employee from her client records because privacy rules mandate confidentiality of clients’ mental health treatment records!
If the employee was not forthcoming with medical certification of her disability, the agency could send her for a fitness-for-duty exam to obtain a current opinion about the employee’s disability status and work limitations.
Once the interactive process is done, if performance is still deficient or there is a potential health and safety issue, counseling, disciplining or discharging her can be considered if she can’t perform the essential functions of her position after implementation of any reasonable accommodations.
(More information on the interactive process and reasonable accommodations can be obtained from the EEOC.)