I have recently learned that a supervisor is being treated by a mental health doctor. My concerns are that this employee has, in recent past, shown signs of mood swings that has resulted in counsel sessions questioning his public outburst. Can I confront the employee explaining how I came to the knowledge of his doctor care and out of sincere concern, ask if he is on any medication that might cause concern since he works around machinery?

My first question would be how did you come about knowing this information? If it was through information received from your health insurance plan, HIPAA can come into play.  If you confront and ask, you are opening up an ADA issue. Most employers prefer to let the employee start that conversation.  Any employer assumption of a disability can play into ADA also.  And this knowledge could also play into a discrimination lawsuit. If you confront the employee about the medication, you are proving that you "know" about the disability...and he could later claim that it influenced the employment decisions you made.

Does your company currently have any policy on informing the employer about medication that employees are taking? Especially those who work on/around machinery?   Do you have a random or reasonable suspicion drug testing policy? 

Personally I would continue to counsel on the job performance issues.   And I would take the word "confront" out of my vocabulary list.  Before terminating the employee, I would pass the scenario by a local employment attorney to make sure you have your t's crossed and i's dotted.

 

 

I have to agree with HRforME on this issue.  There are numerous reasons that any employee could be on any medication at any given time, are they required to report what the medications are and why they are taking them to the employer?

If this employee really has shown signs of mood swings in the past that resulted in couseling sessions (not clear  here, I am assuming you mean counseling sessions with employer), then I would just be glad to see the s/he is getting the help they need.  I for one would not mention anything to the employee, I would simply observe and go from there.

I just read another scenario on another forum and the good advice given was "Do not speculate on causes or provide solutions"....or the cause or remedy. Instead address the problem -- job performance.

You also shouldn't make the assumption that medication for mental illness will preclude an employee from operating machinery anymore than taking a medication for any other condition.  We have had an employee who has been on such medication for several years and has operated heavy machinery with no problems.

I agree with the others, address any performance or conduct issues in an objective manner and don't interject your own conclusions.

1) We don't know that this person is actually seeing a "mental health doctor".

2) Seeing a "mental health doctor" and taking prescription medications are not the same thing.

How you came about this knowledge could become a problem for you in the future, depending on how it's being used.

 

That being said, and taking into account the other good advice given above, you could have reasonable concerns about safety.
ADA: 1630.14 of the regs -- http://edocket.access.gpo.gov/cfr_2007/julqtr/29cfr1630.14.htm

    (c) Examination of employees. A covered entity may require a medical
examination (and/or inquiry) of an employee that is job-related and
consistent with business necessity. A covered entity may make inquiries
into the ability of an employee to perform job-related functions.
    (1) Information obtained under paragraph (c) of this section
regarding the medical condition or history of any employee shall be
collected and maintained on separate forms and in separate medical files
and be treated as a confidential medical record, except that:
    (i) Supervisors and managers may be informed regarding necessary
restrictions on the work or duties of the employee and necessary
accommodations;
    (ii) First aid and safety personnel may be informed, when
appropriate, if the disability might require emergency treatment; and
    (iii) Government officials investigating compliance with this part
shall be provided relevant information on request.
    (2) Information obtained under paragraph (c) of this section
regarding the medical condition or history of any employee shall not be
used for any purpose inconsistent with this part.

You could make the case that you need to know if this person is fit to work around machinery if an unfit person would be a danger to themselves or others and send them out for a medical cert.  Keep in mind that while we normally try to keep the ADA monster in the box, you need to take into account what will happen if you do nothing.  If this person could fall into a grinder or, in an uncontrollable rage, shove someone else into a grinder, then that's something that could end up costing the Company more than dealing with the ADA requirements.

You might begin with the magic question. "Is there anything about you or your personal life that you think I should know about that could interfere with your ability to perform your job properly or safely?"  If they say no, you should still consider whether or not you want to send them out for cert but you run into a problem in that eventually someone will wonder why you thought that was necessary.  How you know this information will come back to haunt you if it wasn't proper and you take action on it.  Proper or not, now that you know, there are civil issues that could arise out of your inaction if this person's leg gets stretched to 15 feet long when he sticks it in an auger.

You might begin with the magic question. "Is there anything about you or your personal life that you think I should know about that could interfere with your ability to perform your job properly or safely?" 

 

That has to be one of my all time favorite questions. It is the Alpha and the Omega when it comes to asking questions that need to be asked, but you can't ask them the way you want to ask them. Are you disabled? Do you have a mental illness? Do you need frequent breaks because of eyesight strain? Can you do this or that effectively because of _________? All of this can be answered by simply using this magic question. I use it so often that I sometimes think I say it in my sleep.....