Before 2020, the American Psychiatric Association reported that 1 in 5 United States adults experience some form of mental illness every year. This means that prior to the pandemic, you could reasonably estimate that about 20% of your workplace’s employees struggled with some form of mental illness throughout the calendar year. Since the pandemic, that number has only increased. However, there has also been a changing perspective on mental health issues in recent decades. Historically, mental illness was associated with a character flaw. Now, there is greater scientific and social understanding that mental illness cause changes in emotions, thinking, or behaviors that can lead to problems carrying out basic functions, much like any physical disability or injury.Studies have suggested that the number one mental health diagnosis that will surface due to the pandemic is Post Traumatic Stress Disorder, or PTSD, which manifests as detachment from others, strong negative reactions to otherwise normal occurrences, inability to focus, and mood swings. Sound familiar? You may have experienced some of these symptoms yourself or noticed them in colleagues or your employees. This response is logical, given that the impacts of the pandemic were much like that of a natural disaster, such as a hurricane or tornado. We were isolated and unable to travel, short on basic resources, and many individuals lost their jobs. Worst of all, we suffered the loss of family and friends to a horrible virus that was completely unheard of as recently as 2019. The entire pandemic was a collective trauma that we all endured, and the lingering effects are only now being observed. The question becomes: should an employer care about the mental health of its employees? And if the answer is yes, what can an employer do to safely and responsibly support its employees? Employers should care about their employees’ mental health for reasons beyond simply being altruistic. Mental illness leads to performance and productivity issues, retention problems, and resentment that transforms into claims for perceived harassment or hostile work environments. Employers can do a number of things to safely support and assist their employees that are struggling. Fundamentally, leadership needs to be transparent with its employees about mental health by setting the example. Acknowledge that a person’s feelings of stress and anxiety are valid, and embrace opportunities to empathize with employees. Importantly, company leaders need to monitor their own mental well-being. Employees report that seeing leadership invest in their own wellness boosts morale. It shows that we truly are all in this together. Next, encourage the use of company benefits. Many companies have Employee Assistance Programs (EAPs), but employees do not take advantage of the benefits because they don’t know about them or do not know how to access them. This can be resolved through regular messaging to employees about any EAP benefits your workplace has to offer. In addition, offer the use of Family and Medical Leave Act (FMLA) leave or short term disability insurance benefits if the situation is appropriate. Ultimately, it’s worth it to employers if the employee takes time off to get better, rather than having the employee burn out and either leave or have to be terminated. Finally, be consistent with your communications. As government guidance and other policies and recommendations seem to change by the week, employees will appreciate reiteration of workplace policies. Employees generally like consistency and predictability; as such, reminding them of the rules and policies of the workplace on a regular basis will not only improve employees’ sense of security, but also increase accountability for their behavior. When being proactive fails, there are other strategies that employers can implement. The FMLA and Americans With Disabilities Act (ADA) could both apply to an employee struggling with mental health issues. Leave from work or other accommodations may be appropriate, such as a modified work schedule or additional technological or physical supports. Recall that while the Health Insurance Portability and Accountability Act (HIPAA) does not apply to employers unless the employer self-insures for healthcare, the ADA requires that any accommodations provided to an employee remain confidential. Employers should only disclose these accommodations on a need to know basis, such as to an employee’s supervisor. Workers compensation insurance may also be applicable if the mental illness is a result of something that happened at work. Employers need to be vigilant and report claims to their workers compensation carrier if the employer believes that an employee suffered a mental health injury at work. If the employer fails to report a claim, the employer could lose the exclusivity benefit under the workers compensation statute and face liability for damages, rather than have the claim covered through insurance. Lastly, sometimes there is not time to assess reasonable accommodations for an employee if the employee poses a direct safety threat to themselves or others. The test for whether an employee poses a direct threat has four factors that must be considered: a) The duration of the risk; b) The nature and severity of the potential harm; c) The likelihood that the potential harm will occur; d) The imminence of the potential harm. If, after weighing each of the above factors, the employer determines that the employee is a direct threat, adverse employment action can be taken against the employee even if the employee has a qualifying disability under the ADA. This is a drastic measure that should only be exercised as a last resort in order to protect the safety of the employee and others. In conclusion, employers need to be prepared to react to an employee’s mental health issues in a positive, but planned, way. The director of human resources is not a counselor or a medical professional, and employers should avoid giving therapeutic advice. Instead, it can never hurt to engage in the interactive process with an employee, just as you would if you were discussing a physical injury. Depending on the nature of the employee’s problem, the interactive process may even be mandatory pursuant to the ADA. A key phrase that can be used by HR or a supervisor is “How can I help you?” Asking this question does not bind the company to providing an accommodation, but it does satisfy the obligation to engage in the interactive process to determine whether a reasonable accommodation can be made under the ADA. Importantly, it can give the employer insight into improving an employee’s situation at work for the betterment of the employee and the company. Our Employment Team is ready to assist you as we navigate the phases of the pandemic and its after-effects on our workplace cultures. Let us partner with you to combat any challenges ahead with legal and practical workplace advice.
February 22, 2022
by Sarah L. Doyle