Mental Health Issues in the Workplace

Labor and employment attorney Fran Haas discussed employer approaches to mental health issues. Her presentation was part of the client-exclusive Law & the Workplace webinar series.

MENTAL HEALTH ISSUES IN THE WORKPLACE ARE HERE TO STAY

At some point in their lifetimes, half of the American population will meet the definition of having a mental health disorder. According to the National Institute of Health, more than one-third of adult Americans currently have a mental health disorder. The most common is depression. Of those who have depression, 70 percent go undiagnosed and untreated. That can make accommodation for mental health issues challenging for employers.

When determining whether an employee needs an accommodation, employers should generally focus on whether a condition can be accommodated—not whether the condition is or is not a “disability” under the law. The definition of a “disability” has been broadly expanded. It pushes employers to focus more on helping (or accommodating) the employee with a mental health issue.

Drug addiction or substance abuse often goes hand in hand with mental health issues. Keep in mind that alcoholism and drug addiction can independently qualify as a disability under the Americans with Disabilities Act (ADA). This means an employee with a diagnosis of alcoholism can be eligible for an accommodation. However, employers may discipline for the effects of alcoholism or drug addiction.

EMPLOYERS CAN ACT WHEN AN EMPLOYEE APPEARS TO BE EXPERIENCING A MENTAL HEALTH CRISIS

It’s a challenge to know when an employee requires an accommodation if they don’t ask for one. That’s especially true in the context of mental health, where symptoms are “silent.” Keep in mind the two-pronged legal test to determine whether any condition—mental health or otherwise—constitutes a disability:

• The employer knew or should have known of the disability, AND
• The employer knew or should have known of the need for an accommodation.

Once an employer has reason to believe that both conditions exist, the employer must engage in the interactive process.

Employers can find themselves in a gray area in the mental health context, where an employer may not know whether an employee’s behavior is a silent cry for help or due to performance or other issues. In that situation, an employer is always on solid ground by offering to be a resource for the employee. Ask “What can I do to help?” An employee does not need to accept the offer. But by helping the employee know the door is open, the employer goes a long way in showing an attempt to accommodate if there is a need to do so.

WORKPLACE SAFETY AND MENTAL HEALTH ARE CONNECTED

A clear relationship exists between mental health issues and workplace violence. Teach employees to report concerns if something about an employee’s behavior causes worry about safety for themselves or others. Employees need to feel comfortable sharing concerns about workplace safety.

TELEWORK ACCOMMODATION REQUESTS ARE OF HIGH INTEREST TO THE EEOC

A work-from-home or telework arrangement is a common accommodation request in the mental health context. The pandemic accelerated a trend for remote work accommodation requests.

Many employers are hoping or expecting employees to return to the office. However, employees who sought a remote work accommodation should not be subjected to a blanket return-to-the office rule. Instead, employees who request a work-from-home arrangement as an accommodation are entitled to an individualized assessment. The assessment determines whether the requested accommodation of working from home is reasonable or whether working remotely would amount to an undue burden.

The Equal Employment Opportunity Commission (EEOC) recently issued guidance on this topic. It has an interest in pursuing enforcement activity related to this issue, so keep it top of mind when handling work-from-home accommodation requests that may arise for employees with mental health issues.

Mental health conditions bring tricky questions for employers. A skilled and knowledgeable labor and employment attorney can assist with specific situations. Contact a Nyemaster attorney if you are faced with mental health issues in the workplace.