Macchia: Mental health at work: Flagging key issues for employers

In today’s world, the outside stressors we constantly face as a society impact our daily lives and, inevitably, our work environments. Since early 2020, our society has been rocked by one event after another, including a pandemic that never seems to end, the tragic death of George Floyd, nationwide shortages on everyday necessities, the attack on the U.S. Capitol Building, high inflation and the fear of an impending recession, gun violence in our schools, stores and places of worship, the U.S. Supreme Court’s decision in Dobbs and, specifically as Hoosiers, the near-total abortion ban recently signed into law.

For some, these events have attacked their mental health in insurmountable ways. According to the National Alliance on Mental Illness, one in five adults in this country experience mental illness each year, one in 20 adults in this country experience a serious mental illness each year and suicide is the second leading cause of death among people aged 10-34. While recent events have contributed to and exacerbated this problem, the presence of mental health issues in the workplace existed long before the beginning of a global pandemic. Despite that fact, employers still at times simply do not know how to confront and handle mental health issues. Why? Because unless you or a loved one has experienced the debilitating impacts of a mental disability (in both the legal and nonlegal sense of the word), “mental health issues” can be scary and uncomfortable.

In an effort to put themselves in a better position to handle mental health issues, my client employers typically ask two different questions: (1) How do I know if my employees are OK? and (2) what do I do if I know they are not?

Starting with the second question, one fundamental concept to understand is that a mental health condition is not a failure in performance or a character flaw. A mental health condition is, in many cases, a disability that is covered under the Americans with Disabilities Act and must be treated as such in the workplace. While this means that employers should not terminate an employee at the first sign of a mental health condition, it does not mean that your client, as an employer, must excuse poor job performance.

Rather, once an employer becomes aware that a mental health condition may be contributing to an employee’s performance, attendance or other work-related setbacks, the employer must engage in an interactive process with the employee to determine whether the employee can be reasonably accommodated in order to perform the essential functions of the job.

What makes an accommodation reasonable is very individualized and will likely look different depending on several factors, including the type of company and the nature of the employee’s job. Some examples of accommodations my clients have implemented include adjusting the employee’s schedule, building breaks into a shift, providing a quiet working space, allowing the employee to work remotely, allowing intermittent or continuous leave for treatment or, in certain circumstances, reassignment to a different position.

Employers should keep in mind that the existence of an employee’s mental disability, the accommodation process (and medical information learned throughout that process) and any resulting accommodation(s) must be kept strictly confidential and shared only on an as-needed basis — for example, with a supervisor who needs to assist in implementing the accommodation. In addition, any request for medical-related information must be limited to what is necessary to determine the nature of the employee’s condition and associated job restrictions and evaluate proper accommodations. Due to the confidentiality requirements of the ADA, employers would be prudent to engage counsel to help guide them through the ADA process.

Mental health conditions in the workplace can also implicate the Family and Medical Leave Act. These conditions can amount to a “serious health condition” under the FMLA and would, therefore, qualify for FMLA leave. As a result, knowing the interplay between the ADA and FMLA when leave is involved is essential, and we as lawyers should advise our company clients on how to navigate what can be rough waters.

Now one may ask, if an employee does not feel comfortable coming forward and requesting an accommodation, how do we know if one is needed? That leads back to the first question — how do we know if our employees are OK? The fine line that exists between what an employer should and should not do makes this a difficult question to answer. An employer should never assume that an employee is experiencing an issue with mental health and should also never act on any assumption made. The ADA not only protects individuals who do, in fact, have a qualified disability, but it also protects those who are “perceived as disabled.” Therefore, employers should tread lightly before acting on any perception that an employee has a mental health condition.

Rather, employers should provide certain resources to employees and foster general awareness so that supervisory and other managerial employees know how to handle situations they may face. The single most important thing an employer can do for its employees is to (1) train managers and human resource personnel on how to respond when an employee approaches them about difficulties they are having at work as a result of a mental health condition and (2) maintain a written policy detailing how employees should request accommodations, designating certain individuals to contact in the event an employee is experiencing mental illness and prohibiting any sort of retaliation. Employees need to understand and believe that they will not be terminated, demoted, disciplined or adversely impacted in any other way as a result of requesting an accommodation or having a mental health condition, and these two items will help ensure that objective is achieved.

Employees also need to feel supported and valued — one way company clients have done this is by having resources available for employees, such as an employee assistance program, that they can access anonymously as needed. In addition, 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 seclusion we’ve all faced.

As stated above, facing mental health issues in the workplace can be uncomfortable and legally complicated, but it is something employers must do. I encourage you to reach out to your company clients and ensure they are taking the best (and right) steps to help their employees through these challenging times.•

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Melissa Macchia is a partner in Taft’s Employment and Labor Relations group. Reach her at [email protected]. Opinions expressed are those of the author.