Managing Mental Health in the Workplace – Obligations and Best Practices

The importance of understanding workplace mental health

Understanding your company's obligations regarding employees' mental health is crucial to providing a safe and healthy workplace in the midst of changing regulations and other unexpected situations. Over the past couple of years, employees have experienced unprecedented change resulting from pandemic uncertainty. While many of the changes affecting employees' personal and professional lives were implemented with public health and well-being in mind, there have been undeniable effects on individuals' mental health, as well. With many employees returning to the office in-person and experiencing pandemic fatigue, employers should not overlook their role in supporting employees' mental health and well-being during this extraordinarily stressful time. Millions of individuals suffer from mental health conditions. This can impact the workplace in many ways, from employee productivity to accommodation requests to discrimination charges. These issues are only likely to grow given the prevalence of mental illness, society's increasing emphasis on mental health awareness, and the ongoing uncertainty resulting from COVID-19. Given these factors, prioritizing awareness of your company's legal obligations and best practices regarding mental health conditions in the workplace is a must.

What are employer obligations regarding mental health in the workplace?

• Prohibits disability discrimination against employees and job applicants in decisions like hiring and termination.
• Prohibits harassment based on disability.
• Directs employers to engage in an interactive process when an employee's need for an accommodation need is known.
• Requires employers to provide a reasonable accommodation to qualified individuals with a disability if there is no undue hardship.
• Prohibits retaliation for requesting a reasonable accommodation.

Determining whether a mental health condition is an ADA-covered disability can involve a good deal of factual and legal analysis. For example, does the mental impairment substantially limit a major life activity? Can the employee perform the essential functions of the job? Is the employee experiencing job-specific workplace stress or other unseen challenges?

Deciding on the appropriate accommodation can also be challenging.

Examples of reasonable workplace accommodations may include:

• Altered break and work schedules — for example, scheduling work around therapy appointments.
• Quiet office space or devices that create a quiet work environment.
• Changes in supervisory methods, such as written instructions from a supervisor that usually does not provide them.
• Specific shift assignments.
• Permission to work from home.
• Changes to workplace policies, procedures, or practices.

It's important to be aware of additional issues, such as:

• Limited circumstances where an employer should initiate the interactive process when an employee did not request an accommodation.
• Parameters for requesting supporting documentation from a healthcare provider and confidentiality requirements.
• Understanding the distinction between certain eccentric or usual conduct on the part of an employee that may be protected under the law versus disciplining an employee for misconduct that violates a safety standard.
• Understanding that employers are not required to employ or accommodate anyone that poses a direct threat to safety, while avoiding myths or stereotypes about a mental health condition when deciding this.
• Prohibited and permitted psychological exams.
• State and local laws that may provide additional protections and obligations.

Mental illnesses as serious health condition under the FMLA

An employee's mental illness may also qualify as a serious health condition under the Family Medical Leave Act (FMLA). If you are a covered employer, eligible employees are generally entitled to up to 12 weeks of unpaid, job-protected leave during a 12-month period. Employee eligibility and employer obligations depend on the facts and circumstances of each case, but you should consider if:

• An employee’s mental health condition meets the definition of a serious health condition under the statute and regulations.
• The employee provides proper notice, especially given that mental health conditions can be episodic and affect an employee without warning.
• The employee's words, actions, or even unusual behavior provide notice of the need for leave.
• An employee returning from leave satisfies any properly requested fitness-for-duty requirements.
• Any state and local laws provide additional leave requirements.

Other legal obligations to consider regarding employee mental health

• Compensability of job-related mental injuries or illnesses under workers' compensation laws, such as mental conditions caused by workplace stress or a physical injury on the job.
• Occupational Safety and Health Act (OSH Act) requirements, such as when employers must keep records of an employee's work-related mental illness on Occupational Safety and Health Administrative (OSHA) forms and related privacy concerns.
• Employee benefits issues, such as health plan coverage, wellness programs, and employee assistance programs (EAPs).

How has COVID-19 affected workplace mental health?

As an employer, it's important to recognize the different ways COVID-19 has affected and continues to affect employees' mental well-being. In addition to the expected distress relating to illness, loneliness, grief, and general disruptions to daily life, some work-specific stressors may include:

• The isolated nature of remote working.
• Anxiety of returning to the office either full-time or as part of a hybrid work environment.
• Balancing work obligations, childcare, and general family demands.

Depending on the facts and circumstances, these scenarios can lead to legal obligations. If an employee has an ADA-covered disability or serious health condition under the FMLA, for example, you should treat accommodation and leave requests like any other and follow the same legal analysis.

Best practices to encourage mental health in the workplace

Implement these best practices to help foster a healthy and productive workforce even if they do not stem from a legal obligation:

• Regularly engage and communicate with employees.
• Use technology to help remote employees feel less isolated in their day-to-day work activities, such as messaging platforms and virtual meetings and social events.
• Support employees transitioning to hybrid or other in-person work by offering notice and flexibility if possible.
• Remind employees of any employer policies, programs, or other initiatives that support employees' mental health and well-being and encourage employees to take advantage of them, such as:

• Wellness programs.
• EAPs.
• Mental health days or other paid time off.
• Other workplace perks or resources, such as access to free or discounted online courses, webinars, articles, blogs, or apps for fitness, meditation, mindfulness, counseling, healthy eating, sleep, or general mental well-being.

• Offer training to managers on how to discuss mental health with employees in an appropriate, sensitive, and empathetic way.
• Use employer communications, particularly those from business leaders, to raise mental health awareness, fight the stigma associated with mental health disorders, and demonstrate that employees' mental well-being is a priority for the employer.
• Ensure employees know whom to contact with questions or where to access more information on mental health resources and employee benefits — such as a page on the employer's intranet devoted to mental health.

For a more complete review of this workplace issue, please read Mental Health Conditions in the Workplace Practice Note, available with a free trial to Practical Law.