Macchia: Mental Health in the Workplace: Reporting Key Issues to Employers
In today’s world, the external stressors that we constantly face as a society impact our daily lives and, inevitably, our work environments. Since the start of 2020, our society has been rocked by one event after another, including a pandemic that seems never to end, the tragic death of George Floyd, nationwide shortages of basic necessities, the attack on the US Capitol, high inflation and fear of an impending recession, gun violence in our schools, stores and places of worship, the US Supreme Court ruling in Dobbs and, specifically as Hoosiers, the recently enacted near-total abortion ban.
For some, these events attacked their sanity in insurmountable ways. According to the National Alliance on Mental Illness, one in five adults in this country suffers from mental illness each year, one in 20 adults in this country suffers from serious mental illness each year, and suicide is the second leading cause of death in people between the ages of 10 and 34. Although recent events have contributed to and exacerbated this problem, the presence of mental health issues in the workplace existed long before the onset of a global pandemic. Despite this fact, employers still simply don’t know how to confront and manage mental health issues. Why? Because unless you or a loved one has experienced the debilitating effects of mental disability (both legal and non-legal), “mental health issues” can be frightening and uncomfortable.
In an effort to put themselves in a better position to manage mental health issues, my client employers typically ask two different questions: (1) How do I know if my employees are doing well? and (2) what should I do if I know they are not?
From the second question, a fundamental concept to understand is that a mental health problem is not a performance failure or a character flaw. A mental health condition is, in many cases, a disability covered by the Americans with Disabilities Act and should be treated as such in the workplace. While that means employers shouldn’t fire an employee at the first sign of a mental health issue, it doesn’t mean your client, as an employer, should excuse poor job performance.
Instead, once an employer becomes aware that a mental health issue may be contributing to an employee’s performance, attendance, or other work-related setbacks, the employer must initiate a process interact with the employee to determine if the employee can be reasonably accommodated to perform the essential functions of the position.
What makes a reasonable accommodation is highly individualized and will likely differ depending on several factors, including the type of business and the nature of the employee’s job. Examples of accommodations my clients have implemented include adjusting the employee’s schedule, incorporating breaks into a shift, providing a quiet workspace, allowing for the employee to work remotely, authorization for intermittent or continuous leave for treatment or, in certain circumstances, reassignment to another position.
Employers should keep in mind that the existence of an employee’s mental disability, the accommodation process (and the medical information learned through that process) and any resulting accommodation should be kept strictly confidential. and shared only when needed – for example, with a supervisor who needs to help with the implementation of the accommodation. In addition, any request for medical information should be limited to what is necessary to determine the nature of the employee’s condition and associated employment restrictions and to assess appropriate accommodations. Due to the confidentiality requirements of the ADA, employers would be prudent to hire an attorney to guide them through the ADA process.
Mental health issues in the workplace may also involve the Family and Medical Leave Act. These conditions may amount to a “serious medical condition” under the FMLA and would therefore qualify for FMLA leave. Therefore, knowing the interaction between the ADA and the FMLA in the event of a leave is critical, and we as attorneys should advise our clients on how to navigate sometimes choppy waters.
Now, one may ask, if an employee does not feel comfortable coming forward and requesting an accommodation, how do we know if an accommodation is necessary? This brings us back to the first question: how do we know if our employees are doing well? The fine line between what an employer should and should not do makes this question difficult to answer. An employer should never assume that an employee has a mental health problem, nor should they ever act on a made assumption. The ADA not only protects people who have, in fact, a qualified disability, but it also protects those who are “perceived to be disabled.” Therefore, employers should proceed with caution before acting on any perception that an employee has a mental health issue.
Instead, employers should provide certain resources to employees and promote general awareness so that supervisory employees and other managers know how to handle situations they may face. The most important thing an employer can do for its employees is to (1) train managers and human resources staff on how to respond when an employee approaches them about difficulties they are having at work reason of a mental health issue and (2) maintain a written policy detailing how employees should request accommodations, designating certain people to contact in the event an employee suffers from a mental illness, and prohibiting any kind of retaliation. Employees must understand and believe that they will not be terminated, demoted, disciplined, or otherwise affected as a result of an accommodation request or mental health issue, and both of these will help ensure that the goal is reached.
Employees also need to feel supported and valued. The company’s customers have achieved this in part by providing resources, such as an employee assistance program, that they can access anonymously when needed. Additionally, social events and team building functions can also be great ways to show employees that they are valued and will help foster an inclusive work environment after the time of isolation we all have. been confronted.
As noted above, dealing with mental health issues in the workplace can be uncomfortable and legally complicated, but it’s something employers need to do. I encourage you to reach out to your company’s customers and make sure they are taking the best (and right) steps to help their employees through these difficult times.•
Melissa Macchia is a partner in Taft’s Employment and Labor Relations group. Join her at [email protected] The opinions expressed are those of the author.