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We strongly support cities in providing preventative mental health programs for their employees.
Due to the nature of their job duties first responders may be at increased risk of developing PTSD and other mental health conditions. In addition to the personal impact, public safety departments are facing a tighter job market, making it important to successfully treat and retain high-performing individuals. In order to keep their public safety personnel healthy many cities are providing mental wellness programs.
One of the programs cities have been offering or requiring is mental health check-ups for public safety employees. We have attempted to provide guidance for these programs in the form of frequently asked questions. We strongly encourage each city to work collaboratively with their public safety leaders, human resources team and city attorney to find the preventative programming that works best for them.
Get answers to these frequently asked questions (FAQs):
Q1. Is there any liability associated with paying for mental health treatment for a police officer?
Q5. How will the notes be classified under data practices law?
Q6. Is it appropriate for the psychologist seeing the employee to do FMLA certifications?
Q7. Does this benefit need to be negotiated with the union?
Q8. Can we back out from this benefit if it doesn’t meet our expectations?
Q9. Are there any other legal issues we should be thinking about?
Q11. Does the League have a recommendation with regard to mental health preventive programs?
Q1. Is there any liability associated with paying for mental health treatment for a police officer?
A1. There is probably not much, if any, additional liability with providing this type of benefit vs providing other similar programs such as group health insurance or an Employee Assistance Program (EAP), for example, if the city uses some due diligence in selecting the provider.
The person/firm selected should, of course, be licensed to practice in Minnesota. There is general professional consensus (backed by the Diagnostic & Statistical Manual of Mental Disorder 5) that cognitive behavioral treatments are effective for treatment of PTSD and many other related mental health disorders so the city may want to consider using a practitioner with a cognitive behavioral treatment background and orientation.
The city should also make sure the selected provider has their own malpractice and other insurance. The League’s Risk Management Attorney, Chris Smith ([email protected]) may be able to provide additional guidance on this and other contractual issues once the city has made a decision about what type of program it wants to implement and has selected a provider.
Q2. Is it appropriate for the city’s public safety employees to have a greater benefit than other employees (i.e., access to a mental health provider at no cost)?
A2. Generally, treating public safety employee differently with regard to this benefit is going to be permitted if it is job-related and supported by a business reason. Specific to law enforcement officials, this difference is job-related and supported by a business reason because of the nature of the job, including the psychological demands, which is generally recognized by state and federal courts, agencies, and other entities.
Q3. Is this considered an employee benefit subject to state and federal continuation laws and other requirements?
A3. It will depend upon how the program is set up and each program will need legal review by the City’s attorney. Generally, if the visits qualify as “medical care,” the program will qualify as a group health plan for purposes of COBRA and Section 105 of the Internal Revenue Code. Some factors to consider:
- Is the provider a licensed mental health care professional? If so, that factor weighs in favor of concluding that the public safety employee is receiving medical care.
- If any of the covered public safety employees receive additional counseling sessions and the City pays for those sessions, that portion of the program involves the provision of medical care (mental health counseling is medical care) and will likely constitute a group health plan for purposes of COBRA and Section 105 of the IRS Code.
- If the annual visit for all public safety employees does not involve the provision of any medical care, the value of that service will not be excluded from the employee’s taxable income by Section 105 of the Code and will need to be included in the employee’s taxable income unless a different tax exclusion applies.
- Minnesota continuation coverage requirements would likely not apply to these types of programs because it is not insured, and it is not the type of self-insurance program to which Chapter 62A of the Minnesota Statutes would apply if it were insured.
Q4. Are the mental health provider’s notes discoverable if the city were sued for the public safety employee’s on-duty behavior or actions?
A4. Under the right circumstances, the psychologist’s notes likely are discoverable. For example, if there was a lawsuit in which the employee’s mental health status was a factor, the opposing counsel could likely get access to the notes if any exist.
However, a party seeking a police officer’s psychological records has a high burden to show that these are discoverable, i.e. that the officer waived the privilege – and in most instances the officer’s attorney will object to the other party obtaining these records. See Heilman v. Waldron, 287 F.R.D. 467 (D. Minn. 2012; attached)
The psychotherapist/patient privilege is recognized by both state law (Minn. Stat. 595.02, subd. 1(g)) and federal law. However, any privilege, including this one can be waived – typically by the officer putting his/her psychological condition/state at issue or by voluntarily disclosing the information.
Q5. How will the notes be classified under data practices law?
A5. The data would be classified as Private (available to the employee him/herself and to others only with a business/legal reason.)
Under the data practices law, the contractor (mental health provider, in this case) is required to keep the records. The city can agree not to access them in order to provide the employee greater confidence in confidentiality; this should be in the agreement between the contractor and the city.
Q6. Is it appropriate for the psychologist seeing the employee to do FMLA certifications?
A6. We are not aware of any legal reason that would make it inappropriate for the psychologist to complete the FMLA certification. Since the employer is paying the psychologist, we understand this may be uncomfortable for both the employee and the city and perhaps even the provider; therefore, it may be a best practice to clarify upfront with both employees and the provider that FMLA and other work related documentation like this will not be requested from the provider by the city as a result of these check-in visits.
Q7. Does this benefit need to be negotiated with the union?
A7. Yes, the city most likely must negotiate/talk to the union about this type of program if participation is made a job requirement.
Some labor relations consultants recommend negotiation on the terms and conditions of the program. Others recommend characterizing it as “meet and confer” on the concept of having the program and then implementation bargaining on the details.
Even if offered voluntarily and not as a job requirement, the best practice is to provide notice to the union and an opportunity to meet and confer on it.
Based on this, the League suggests involving unions early on in the discussions about implementing such a program in your city.
Q8. Can we back out from this benefit if it doesn’t meet our expectations?
A8. If it ends up in the collective bargaining agreement (and based on the above question it likely will), then you will want to negotiate some language that allows for the city to discontinue the program or sunset it. An alternative would be to not have it in the collective bargaining agreement but rather draft it as a pilot project in a separate memorandum of agreement. With the pilot project approach, you get a “trial run” period before you sit down with the union at the next round of bargaining to discuss whether to keep it or not and under what terms.
Q9. Are there any other legal issues we should be thinking about?
A9. Here are a few more legal considerations to discuss with your city team.
- Ethical standards of provider. We recommend inquiring about the ethical standards associated with the type of provider you are considering using. It is our understanding that nearly all mental health professions (psychiatrists, psychologists, clinical social workers, psychiatric nurses etc.) have ethical standards set out for their profession. Ask the provider to summarize the ones that would apply in your situation, especially with regard to ethical guidelines about sharing otherwise confidential information in order to prevent harm to the client or to others. According to this article, it appears to be a best practice for psychologists to divulge the limits of confidentiality upfront to patients: APA Avoiding Ethical Pitfalls
- Not a fitness-for-duty exam. Most preventive mental health programs purposely provide a high level of confidentiality to the employee in order to encourage participation; i.e., an employee will be more willing to try it if they can be sure their mental health status will not get back to their employer, except under mandated reporting requirements where the employee may be a danger to him/herself or others. This means the employer will generally not be given any information about the visit that would allow for a fitness-for-duty determination.
- Types of psychological services. There are three main categories of psychological services for public safety personnel and ideally, they should be kept separate: peer debriefing (no privilege[1][2]), visits with a licensed professional (strongest privilege), and fitness for duty exams (no privilege). Cities can get into some dangerous legal territory by blurring these categories. Note: Peer debriefing data is defined as private under Minn. Stat. 13.43, subd. 9 and disclosure in a personnel proceeding is prohibited under Minn. Stat. 181.9731. However, it could be discoverable in federal and perhaps even state court. “No privilege” applies to peer debriefing in the sense there is no psychotherapist/patient privilege because a mental health medical care provider is not providing the services; visits with a licensed professional have the strongest psychotherapist/patient privilege because a mental health provider is providing the services and maintaining confidentiality with the patient, and fitness for duty exams have no privilege because no confidential psychotherapist/patient relationship is established as the purpose of the exam is to provide an evaluation to the employer.
- Perception of ADA-covered disability. If configured to avoid the city having knowledge of who is seeking treatment, we don’t think it’s likely supervisors would be in danger of perceiving someone as having an ADA-covered disability. Some programs avoid this by having everyone go see the provider at least once per year and/or using a coded system that keeps identities of those attending secret. This type of approach helps protect the city against an ADA-related claim.
Q10. What else should we consider when deciding whether or not to set up a program like this in our city?
A10. Experts are increasingly advising employers to help employees address mental health issues, within legal constraints, in the workplace. One way to do this is to reduce the stigma associated with mental health issues and demonstrate the employer’s concern for employee mental health. Helping employees become more confident that by coming forward to address mental health issues, they are not risking their livelihoods is one way to do this.
This article provides a discussion about employers reducing the stigma associated with mental health: Harvard Business Review: People Want their Employers to Talk about Mental Health and creating a work environment that encourages employees to seek help.
Q11. Does the League have a recommendation with regard to mental health preventive programs?
A11. In summary, while the League acknowledges there are some legal issues and challenges associated with providing mental health services to public safety employees, we tend to think those can be minimized by very clear language in the agreement/contract between the city and the provider and appropriate due diligence in vetting the provider. We applaud cities in their efforts to define and discuss programs available to assist public safety with mental wellness concerns and recovery.