MAY IS MENTAL HEALTH AWARENESS MONTH
Everyone has a bad day every so often, but sometimes the bad day something more – it can be a sign of a mental health illness such as depression, anxiety, or bi-polar conditions, or it can be brought on and triggered from a crisis, such as a death of a loved one.
As the stigma around mental health diminishes, and more people are talking about their mental health struggles, mental health in the workplace is an issue that requires attention by employers. Studies have shown that rates of burnout, anxiety and depression are at record levels so employers may need to consider how the workplace may need to evolve to create a more supportive environment.
Clients have advised that their employees have:
- asked about the Company’s policy on mental health days;
- expressed they are experiencing mental health concerns as reasons for absences or performance issues;
- taken time off of work due to “mental health” issues.
When an employee makes these or similar statements, employers are unsure of what to do. Do these statements result in a presumption that the employee is “disabled” as defined under the Fair Employment and Housing Act (FEHA), the ADA or FMLA/CFRA? If yes, has the employer’s obligation to engage in the good faith interaction process been triggered? And does the employer then have an obligation to provide a “reasonable accommodation”? Probably….
Whatever the cause, it is clear that an increasing number of employees are dealing with mental health issues – some severe enough that render them unable to work. Below is a summary of the various laws that employers should understand in addressing mental health issues at work and some thoughts on what employers can do to assist their employees and still maintain the workplace standards.
FMLA COVERS MENTAL HEALTH ISSUES
Recently, the U.S. Department of Labor (DOL) issued guidance reminding employers that the Family and Medical Leave Act (FMLA) covers an employee’s mental health condition which prevents or inhibits them from working, similarly to any other type of physical condition that renders the employee unable to perform the essential functions of their position.
The DOL provides several examples of FMLA-triggering situations in its new Fact Sheet # 28O and FAQ.
he DOL Fact Sheet reminds employers that a serious mental health condition that requires continuing treatment by a health care provider includes—
- Conditions that incapacitate an individual for more than three consecutive days and require ongoing medical treatment, either multiple appointments with a health care provider, including a psychiatrist, clinical psychologist, or clinical social worker, or a single appointment and follow-up care (e.g., prescription medication, outpatient rehabilitation counseling, or behavioral therapy); and
- Chronic conditions (e.g., anxiety, depression, or dissociative disorders) that cause occasional periods when an individual is incapacitated and require treatment by a health care provider at least twice a year.
An employee may take time off under FMLA for:
- Leave to care for a Family Member with a Mental Health Condition
- Leave for the Employee’s own Mental Health Condition
- Leave to Care for An Adulty Child with a Mental Health Condition
- Military Caregiver Leave for Mental Health Conditions
FEHA/ADA PROVIDES PROTECTION TO EMPLOYEES WITH MENTAL HEALTH CONCERNS
The California Fair Employment and Housing Act (FEHA) requires employers of five or more employees to provide reasonable accommodation for individuals with a physical or mental disability.Employers with 15 or more employees are covered by the Americans with Disabilities Act (ADA) which also requires that employers provide reasonable accommodations to employees with mental health related disabilities.Under California law, a person (applicant or employee) is considered to be disabled if that person is limited in one or more of the major life activities which include learning, thinking, concentrating, or communicating. Specifically, California defines mental disabilities broadly to include mental and psychological disorders or conditions, emotional illnesses, and intellectual learning disabilities.
Interactive Process & Reasonable Accommodations
Upon request by an applicant or employee with a known disability, employers must engage in an “interactive process” whether initiated by the employee/applicant or in some situations an employer may need to initiate the process when they become aware of the possible need for an accommodation.The reasonable accommodations that could and should be considered include, but are not limited to, the following:
- Changing job duties (though an employer is not required to change an employee’s supervisor as part of an accommodation)
- Providing leave for medical care
- Changing work schedules
- Relocating the work area
- Providing mechanical or electrical aids
- Offering unpaid leave under FMLA and/or California Family Rights Act (CFRA)
During the interactive process, employers are permitted to ask the employee what reasonable accommodation they would like to be provided and then assess the employee’s job and the specific physical or mental limitations of the individual that are directly related to the need for reasonable accommodation.
WHAT TO DO WHEN AN EMPLOYEE DISCLOSES THEIR MENTAL HEALTH CONCERNS?
- Treat mental health conditions the same as physical disabilities: The information provided is to be maintained as confidential, engage in the interactive process and seek to provide a reasonable accommodation.
- Obtain Medical Documentation: As with any form of disability condition, employers can require medical documentation to substantiate whether the employee has a “disability” (without asking for the diagnosis) and if an accommodation is medically required.
- Engage in the Interactive Process & Reasonable Accommodations: Talk with the employee to discuss what reasonable accommodation is needed. Ask for their suggestions. Possible accommodations may include more frequent or longer breaks; a quieter work environment; a work-from-home arrangement; more frequent reminders of tasks or deadlines; removing marginal functions; and flexible work schedules to allow for appointments.
WHAT CAN AN EMPLOYER DO WHEN EMPLOYEES BRING THEIR MENTAL HEALTH ISSUES TO WORK?
As with any employee with a disability condition known to the employer, a termination is unwise. Instead, employers can:
- Focus on Job Performance: If the employee is under-performing, ask if there is anything that they need from the employer to assist them in improving the performance of their job tasks. If the employee declines any assistance, document the offer and the response to establish the interactive process had been undertaken and then no further action is necessary. The employee may be held to the same performance and conduct standards as all other employees.
- Conduct Training for Managers: Train your manager and supervisors to watch, listen and observe their team to recognize conduct that may be the result of mental health concerns. While employers and supervisors are not expected to be mental health professionals, it is not uncommon for those working closely to see when something has changed with an employee’s conduct which can be enough to trigger the potential need for an accommodation.
- Talk to the Employee: It’s okay to ask your employee if they are “okay” – just don’t ask “what’s wrong with you” or ask for any diagnosis. It is not an invasion of privacy to simply make an inquiry as to your employee’s general well-being. A simple “How can I help you?” question shows empathy and a willingness to assist which can go a long way with employees dealing with mental health issues.
WHAT CAN EMPLOYERS DO TO HELP EMPLOYEES WITH MENTAL HEALTH CONCERNS
- Update Sick Leave and/or Attendance Policies
- Employers may wish to revisit their sick leave or attendance policies to provide more time off – with or without pay – when an employee is dealing with a documented mental health crisis. As mentioned above, terminating an employee with a disability, including a mental health disability, should not be the first reaction.
- Remind Employees of the leaves of absences they may be eligible to take.
- Consider Offering Benefits
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- Flexible Work Arrangements: If an employee feels that they can work productively remotely, and a remote work arrangement would be viable, consider allowing employees to work remotely, reduced, or different hours, or alternate shifts as they address their mental health concern.
- Expand Time Off Policies to Include Others: Paid Sick Leave and Bereavement leave policies cover specific family members. An employer may wish to expand who is covered by these policies to cover persons not otherwise identified in the law – the loss of close friends and pets can be a trigger for someone to experience a mental health crisis. Or to cover events not otherwise covered by some laws such as the loss of a pregnancy.
- Employee Assistance Programs through Health Insurance: Many group health plans offer employee assistance programs (EAP). Employers should be familiar with the benefits offered and provide information to their employees.