Practice Tips

PRACTICE TIPS By: Janet Strevel Hayes

Lewis Thomason

NAVIGATING WORKPLACE MENTAL HEALTH ISSUES

For more than 25 years, I have been watching workplace trends, always trying to predict the next “hot” legal issue. While monitoring data from government agencies and reading journals has been helpful, experience suggests that the best way to truly anticipate tomorrow’s legal issues is simply sit back and listen to today’s conversations. After all, most of the people talking are someone’s employees, and their personal issues are a reliable predictor of future employment law issues. Each day when employees walk into the office or on to the factory floor, they carry with them individual hopes, fears, worries and biases. Whatever issues employees are dealing with outside of work invariably become issues employers will be forced to deal with inside the organization – making the workplace the ultimate microcosm of society.

So, what should employers be prepared for in 2023? I’m betting on a host of issues associated with mental health. It was, after all, the dominant cultural conversation 2022. We all know someone battling depression, anxiety, or some other mental health problem, and mental health awareness is now a focal point of our culture. Wise employers should gear up to navigate the complicated arena of legal issues associated with employee mental health.

The legal data is consistent with the cultural conversation. According to statistics from the U.S. Equal Employment Opportunity Commission, accusations of mental health discrimination accounted for about 30% of Americans with Disabilities Act related charges in fiscal year 2021.1 More specifically, anxiety, depression, and post-traumatic stress disorder accounted for nearly 60% of all mental health charges in 2021 – up from 35% in 2010.2

Mental health issues are tricky for employers. Unlike an employee who has a physical impairment, which is often visible and verifiable, an employee with anxiety or depression has a disability that is not always as obvious and often difficult to understand. While there are a multitude of statutes and regulations that may be implicated when an employee suffers with a mental health issue, there are three federal laws that every employer should immediately contemplate: the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and the Occupational Safety and Health Act (OSHA). Below are some of the most pertinent considerations relating to each statute:

The Americans with Disabilities Act (ADA)

• Does the employee have a protected “disability?”

An employee’s mental health problem is a disability entitled to protection under the ADA if it substantially limits one or more major life activities. Anxiety disorders and depression are usually protected disabilities if they have been properly diagnosed. (The employer can require a professional diagnosis in this arena where self-diagnosed “depression” is common.) Additionally, the ADA protects individuals who have a “record” (history) of a psychiatric disability or are “regarded as” having a psychiatric disability.3

• What obligation does an employer have regarding employee privacy? the ADA. Except when asking for an accommodation, an employee (or applicant) can choose whether to tell the employer about the disability. Absent an employee request for accommodation, the employer cannot mandate disclosure and should not ask employees or applicants questions that could be construed as unlawful inquiries into mental health history.4 If, however, an employee’s behavior creates a concern for the health and safety of that individual or other employees, the employer can require a fitness-for-duty examination.

Accommodation

The obligation to provide reasonable accommodation is a principle of the ADA that is more widely known but more difficult to apply. When an employee discloses a mental health disability, the employer is obligated to engage in an interactive process to determine if a reasonable accommodation can be made without causing the employer an undue hardship. Reasonable accommodations are not one size fits all. Altered work schedules to allow time for therapy are a frequently requested accommodation. Requests for quiet spaces or quiet work environments are also a common request. More recently, permission to work from home has become the most requested accommodation. While the EEOC has suggested that remote work is not automatically required as an accommodation, employers should evaluate such requests on a case-bycase basis, considering the specific requirements of the job at issue and being mindful that work from home may be required if the employer cannot show an undue hardship.5

Family and Medical Leave Act (FMLA)

• Does the employee have a “serious health condition” for which leave may be required?

Most mental health conditions, such as diagnosed anxiety disorders and depression, will be deemed a “serious health condition” for purposes of the FMLA.6

• How much leave should be allowed?

Covered employers need to be mindful that the FMLA has made mental health a priority by allowing employees to take up to 12 weeks of unpaid leave for diagnosis and treatment of mental health issues. Leave may be taken all at once or on an intermittent basis. While leave may be required as an accommodation under the ADA, it may also be required as a mandate under the FMLA.

• What is the employer’s obligation following an employee’s leave?

The FMLA protects employees from facing retaliation or discrimination based on the employee’s medical leave. An employee who needs time off to deal with a mental health issue should be restored to the same or substantially similar position without fear of negative career consequences.7