Written by Lynne M. Hook, Employer Lawyer PC
May is Mental Health Awareness Month in the United States. Many of us feel as though the last 12 months have been a challenge to our mental health - whether we lost loved ones, lost business, or lost the personal connection with friends or relatives. Most employees would tell you that the pandemic negatively impacted their mental health. We continue to struggle to properly address mental illness in the workplace.
A recent New York Times article, There’s a Name for the Blah You’re Feeling: It’s Called Languishing, summarized why some feel ambivalent about a return to some form of normal and some just don’t feel themselves. Adam Grant writes, “Languishing is a sense of stagnation and emptiness. It feels as if you’re muddling through your days, looking at your life through a foggy windshield. And it might be the dominant emotion of 2021.” This sense of confusion and difficulty finding motivation will plague some employees.
On the other hand, some employees might report feeling greater freedom and energy at this time. Post-traumatic growth theory holds that people who endure a trauma such as a serious illness, accident or death in the family may recover and feel more confident, resilient, and brave afterward. You might find that employees are eager to jump into new projects or are looking for additional opportunities. Many chose to spend extra time during COVID stay-at-home orders learning a new skill or mastering a subject area that can be useful at work.
Whether employees are feeling enthusiastic or not can really impact your business. As we start to emerge from this unusual business period, it is a good time to review your obligations and options as an employer regarding mental disabilities of employees.
Legal Obligations Regarding Mental Health in the Workplace
Several federal and state laws apply to the mental health accommodation process at work. In California, employers with 15 employees must follow the federal Americans with Disabilities Act (ADA) and its amendments; and employers with five or more employees must comply with the state Fair Employment and Housing Act (FEHA). Therefore, most employers will be required to understand reasonable accommodation. California considers an employee to be disabled if that person is limited in one or more of the major life activities, and some of those mental life activities include learning, thinking, concentrating, or communicating.
Employers covered by the ADA or FEHA are obligated to accommodate the known disabilities of their employees. Often mental health disabilities are not easily seen, unlike physical disabilities. The pandemic has caused stress, anxiety and panic for individuals who have never had any such issues. Individuals who had pre-existing mental health disabilities may have experienced an increased inability to communicate or concentrate.
You might notice that an employee is having trouble with getting work done on time or is not prepared for meetings. An employer might learn of an employee’s mental health challenges from another employee or through observation. Maybe an employee’s relative calls the HR Department to report that the employee is struggling with their mental health. Once an employer is on notice, it is important to explore the issue. What can an employer do to inquire?
- Ask the employee if there is any way the employer can assist them in performance of their necessary job tasks. No reference to the ADA or FEHA is necessary at this point but listen for cues about disability issues.
- If the employee declines the need for assistance, no further action is necessary except to document the conversation. The employee may be held to the same performance and conduct standards as all other employees.
- Train your manager and leaders to recognize requests for accommodations for mental health disorders since they are not always so obvious and providing them complies with federal and state law. Most accommodations for mental health disorders are inexpensive, if not free.
A 2019 survey by Unum found that more than 76% of employees said they're confident their managers were properly trained on how to identify employees who may be having a mental health issue, while only 16% of HR professionals surveyed agreed. In fact, almost all employees assumed managers were trained on how to refer employees to mental health resources, but just 25% of HR pros said their managers receive that training.
How to Respond if an Employee Asks for Help with a Mental Issue
If an employee notifies his supervisor that he is having a hard time with an assignment due to a mental issue, the supervisor is obligated to notify management/HR, and management/HR must start what is known as the interactive process. The interactive process involves discussing how the employee’s disability impacts the essential functions of the role and consideration of medical documentation, as well as options for addressing the concerns. I highly recommend taking the time to listen to your employee in a safe place where they can calmly discuss what is happening.
Employers must find creative ways to address an employee’s mental health needs. Mental health conditions like major depression, post-traumatic stress disorder (PTSD), bipolar disorder, schizophrenia, and obsessive-compulsive disorder (OCD) may result in a request for a reasonable accommodation in the employee’s schedule or work location. An employee need not identify the underlying diagnosis but only that he is having difficulty performing one or more of the essential functions of the role.
I recommend that California employers use the Request for Reasonable Accommodation form provided by the Department of Fair Employment and Housing. This is a three-party process: employee, medical provider, and employer. The first page is to be completed by the employee and will describe the accommodation requested. Section B is for the health care provider to complete and will provide the medical recommendation. It is best to attach the employee’s job description, so the provider understands the duties required. It is important that the employer use section C to document the discussions and options. Finally, the last sections confirm the resolution and follow-up to ensure that the solution is working.
Possible Accommodations to Explore
Once an employee has established a mental disability, the employer must consider the accommodation requested and determine the best approach to take. The employer does not have to adopt the accommodation desired by the employee if another option achieves the same benefits for the employee but is better for the workplace.
A few examples of possible accommodations for mental health disabilities include:
- altered break and work schedules (e.g., scheduling work around therapy appointments),
- quiet office space or devices that create a quiet work environment,
- changes in supervisory methods (e.g., written instructions from a supervisor who usually does not provide them),
- working with a health coach and (Virgin Pulse is one resource),
- more time to accomplish training tasks, and
- permission to work from home.
The Job Accommodation Network is a wonderful resource for employers to explore accommodation issues. JAN provides free consulting services for all employers, regardless of the size of your workforce. JAN services include one-on-one consultation about all aspects of job accommodations, including the accommodation process, accommodation ideas, product vendors, referral to other resources, and ADA compliance assistance.
The accommodation process is an ongoing assessment so if one option does not work, try another solution. Keep in touch with the employee to monitor progress.
Having an Employee Assistance Program can serve as an important component of employee wellness at work as well. Although EAPs started out as substance abuse disorder programs, now EAPs can also be a key tool for employee retention and helping employees stay at or return to work following accident or illness, whether a mental health condition or not.
Introduce Mental Health Awareness in your Workplace
Several organizations offer a free mental health tool kit that employers can use to get started with addressing these needs: Virgin Pulse, Kaiser Permanente, and Cornell’s Employer Assistance and Resource Network on Disability Inclusion are a few. The Department of Labor endorses a useful website at https://askearn.org/mentalhealth/ that includes the 4 A’s of a Mental-Health Friendly Workplace:
- Build awareness and a supportive culture
- Provide accommodations to employees
- Offer employee assistance
- Ensure access to treatment
Remember, your employees may forget about their reviews, their job duties, and their perks; but they will never forget the way you make them feel. Respect employees with mental health challenges and do your best to work with them. Of course, there will be cases where the employee cannot perform the essential functions of the job with or without accommodation. In those cases, the employee is no longer qualified for that role and must look for other opportunities within your organization. Put the at the head of the line for any open jobs that they are qualified to perform and let them seek out what interests them.
Most employment disputes happen because the employee feels disrespected or discarded. Treat your employees as your most valuable business asset – because they are!
Resources for California Employers
Mental health tool kits for employers
Lynne M. Hook, Employer Lawyer PC
Lynne has been advising and defending employers in employment law matters for over 25 years. She counsels human resources and operations professionals on the legal aspects of employment policies and conduct training and workplace investigations. She has her own practice in Manhattan Beach called Employer Lawyer PC. Lynne received her B.A. Cum Laude in Philosophy and Political Science at USC then went on to complete her JD of Law at Notre Dame Law School. In her spare time, Lynne volunteers extensively for American Martyrs Church, National Charity League, and St. Frances X. Cabrini Catholic School