The Psychologically Impaired Staffer: Risks and Choices

March 23, 2018

A member of your medical staff has potentially dangerous psychological issues. You don't want to be insensitive, what are your choices?

It can be difficult when you’ve tried to accommodate a member of your staff with psychological issues again and again, and then something happens and you feel that enough is enough. What do you do?

If you fire her, you’re looking at a discrimination lawsuit. If you don’t, you’re looking at an employee who is unproductive at best (with the accompanying challenges of fellow employee morale) and dangerously inattentive at worst.

Get help. You are already at the point of financial exposure. The question now is how best to minimize it. Let’s consider the two obvious possibilities.

First, the employee brings a claim against you for disability discrimination. Perhaps you will have told the employee upon termination that the reason is her psychological condition. You may need to, especially since, if you are like many employers, you will not have documented sufficiently the employee’s performance difficulties or your own goals for the employee. Providing her “help” with reassignments and relaxed requirements for this individual may come back to bite you, as those steps have shown to your employee (and quite possibly to a judge or jury) that you could easily “accommodate” his particular idiosyncrasies.

Second, you don’t fire the employee, and the employee makes an error with a patient that leads to the patient bringing a claim against you. That’s certainly a horror. Even that risk can lead most employers to err on the side of caution, as it were, and risk a lawsuit from the employee as opposed to one from a patient.

There is another possibility, though, which is both more conservative legally and more humane: medical leave and evaluation. Depending on your policy manual, the size of your practice and your state, different laws will apply regarding paid or unpaid medical leave. The point remains, though, medical leave provides time for an independent expert to evaluate your employee and help you do the right thing.

A consult by an independent medical examiner, a so-called “fitness for duty” evaluation in some jurisdictions, puts in a third party’s hands the comparison of the employee’s skills and challenges with the “essential functions” of the job he holds. This independent examiner can help you integrate the employee, whether temporarily or permanently, or provide objective support that the condition of your employee is simply not conducive to performing any part of the requirements of the job. There may be local legal requirements on how to do this, but it’s worth exploring.

You could suggest that the employee consult her own physician too. There is no reason to create unnecessary distance between the employee and your office. And with the appropriate medical consent obtained from your employee, you could integrate the employee’s physician’s observations and recommendations with that of your independent examiner.

The key here is to try to help, not discipline, your employee. It’s not that costly, it helps you legally, and it’s kind. All in all, it’s the right thing to do.

The above article is not to be taken as professional legal advice.

David M. Rosenberg-Wohl is president of Hershenson Rosenberg-Wohl, A Professional Corporation. HRW specializes in representing physicians in all aspects of their business. Its attorneys have nearly 50 years of experience in matters of direct relevance to medical practice, principally (1) practice formation, partnership and employment relationships; (2) leases, billing and collection; (3) risk, liability and unfair competition; and (4) purchase and sale. David Rosenberg-Wohl is a graduate of Harvard University and Harvard Law School. Joseph Hershenson is a graduate of Harvard University and Stanford Law School. Both come from medical families. He can be reached at david@hrw-law.com.