Mental health at work: Germanwings and beyond

9 minute read
01 March 2015

The tragedy of Germanwings Flight 4U9525 has given rise to considerable public discussion about mental health, particularly where a worker is responsible for the safety of others. The noisy debate erupting from the Germanwings tragedy has the potential to spread either worthwhile discussion or wild misinformation.

As we now know, it is believed that the co-pilot commandeered the Germanwings aircraft and deliberately crashed it into the Alps, killing himself and 149 innocents. It has been called a suicide and a mass murder. Information leaking out suggests that the co-pilot was under treatment for depression and had ignored medical direction not to work at the time of the crash.

The disaster has caused unimaginable grief to those whose loved ones perished. It has also caused concern about aviation safety and, more generally, questions about how employers must address mental health questions among their personnel. This is particularly complex in an era where the legal pressure on employers to accommodate these conditions ratchets upwards.

Civil Aviation Fitness Standards

A look at the facts about the civil aviation sector shows a scrupulously cautious and careful regulation of pilot health. Almost any medical condition that could conceivably affect or impair a pilot’s ability to fulfill her duties will, if detected, result in being prohibited to fly. Indeed, civil aviation medical criteria are so stringent that some believe too many pilots are grounded. Some will go further and say that the risk of being grounded persuades some pilots either to conceal their conditions or not to obtain treatment at all – creating a much greater potential risk.

Those risks are aggravated in the high pressure, sometimes “macho” culture of commercial air transport, says Pat Floyd.  Floyd, a licensed pilot and a partner with Gowlings aviation law group, points to the limited experience of the Germanwings co-pilot as a serious potential factor. “With only a few hundred hours of training and 630 hours of flight experience, the co-pilot had the equivalent of only one year’s experience” Floyd says. Sometimes that’s not enough time, according to Floyd, for a pilot to learn how to manage the high-pressure job.

“He may have been a fragile person, with many souls on his shoulders but without the seasoning or resources to cope” Floyd says. By contrast, many other airlines’ pilots (including the North American airlines) build up 2,000 hours of flight time before achieving co-pilot status. Not only does this make them more experienced at the controls, but according to  Floyd it gives them time to learn the informal but powerful culture of commercial pilots – a culture rich with support, guidance and training. “That deep network of pilot support, coupled with a stringent formal medical aviation system, is very effective” he says.

Statistics appear to bear out Pat Floyd’s view: there have been almost no known instances of a pilot crashing a commercial airliner as a result of depression or other mental disorder. This suggests that medical standards in the civil aviation sector generally work. Going further, it is consistent with studies that show suicidal people seldom inflict violence on others.

Dealing with Mental Health Conditions at Work

That second conclusion is relevant to the broader debate about how we perceive and accommodate mental health issues, in particular depression, in the workplace.  The DSM-IV criteria say that a Major Depressive Disorder or Depressive Episode may be present where a patient exhibits a majority of these symptoms every day:

  1. Depressed mood or irritable most of the day, nearly every day, as indicated by either subjective report (e.g., feels sad or empty) or observation made by others (e.g., appears tearful).
  2. Decreased interest or pleasure in most activities, most of each day
  3. Significant weight change (5%) or change in appetite
  4. Change in sleep: Insomnia or hypersomnia
  5. Change in activity: Psychomotor agitation or retardation
  6. Fatigue or loss of energy
  7. Guilt/worthlessness: Feelings of worthlessness or excessive or inappropriate guilt
  8. Concentration: diminished ability to think or concentrate, or more indecisiveness
  9. Suicidality: Thoughts of death or suicide, or has suicide plan

We see here that “suicidality” is only one symptom of a severe depressive condition and indeed, may be the least common. It is notable that the condition is not typically marked by signs of outwardly-turned hostility or violence. Indeed, depression is more an emotional implosion than explosion.

In the noise erupting around Germanwings, we must remember two simple facts: depression does not normally lead to suicide and suicide almost never leads to murder.

Of course, in our day to day experience, many individuals may experience a minor or brief depressive episode. Individuals can suffer less severe forms of depression and when they do, exhibit fewer of those symptoms and experience them less severely. But even mild symptoms can impair a person’s ability to engage in work activities, particularly those which require mental acuity, decision-making and interaction with others.

In the civil aviation sector, medical criteria are so stringent that they effectively discriminate against pilots on the basis of their mental health. Legally, the argument is that risk in the cockpit constitutes an “undue hardship” that no aircraft operator should be compelled to bear. That is not the case in most other forms of business or work. Most of the time, prohibiting a person from working due to any medical condition will be presumptively unlawful unless the condition plainly impairs the person’s ability to perform the duties.

The exception is the “safety sensitive position”, a job where the complex make up of a person’s stability, acuity, attention and mood can be make or break for the safety of others, including the public. Accurately identifying whether a job is “safety sensitive” is just the first step in that process. The next is to ascertain whether the candidate is suited to it.

According to Dr. Iris Jackson, a clinical psychologist, more and more organizations are investing resources in ensuring the suitability of candidates for those demands. “Such jobs require that people are particularly well balanced.  In my opinion a psychological assessment is essential because we use psychological tests as well as interviews. Occupational health physicians now use psychometrics too, as do some psychiatrists.”

Outside of “safety sensitive positions,” however, the possibility of a problem is not enough to warrant keeping someone off the job. Most of the time, employers will have a duty to accommodate, and that means looking at how to change work and the workplace to enable someone to remain.

Yet mental health conditions are the most difficult to accommodate. First, people rightly fear stigma and will tend to conceal conditions which attract prejudice and which might cost them their careers. That is particularly true among senior and managerial personnel. Very often a condition will reveal itself through its impact on performance. 

Second, once we know of a condition, we often have no clue as to how to accommodate it other than to dispatch the employee to disability leave. Very often, a person with such a diagnosis is given medical clearance to stay away from work, so as to lighten the load of demands and pressure they experience. They regain their strength and resilience while away and then re-enter the fray of daily life.

But long term absence can inhibit a person’s prospects both of recovery and reintegration into work. It would be preferable if organizations developed skills that enabled them to shape work around a person’s temporary limitations, in such fashion that they gain strength from the experience of work without undue pain. Accommodation of these conditions at work – as opposed to staying away from work - may be possible, but requires sensitivity and patience. We are sorely in need of better information and guidance on how to do this well.

At Least One Lesson Is Clear

One hundred and fifty tragic deaths in the Alps returned our attention to this difficult topic. We have come some distance from the recent past when all of this was shrouded in shame and silence. Anti-discrimination law, while challenging and sometimes burdensome for employers, has been a major factor in lifting the veil. Employers have an obligation to their people, and to themselves, not to forget what they have learned, and not to step backward from the progress they have already made.

Special contributions to this article were made by Patrick Floyd, a partner in our Ottawa office's advocacy group.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.