Real World Impact: This is the first in a series of Alerts that will provide guidance to employers on navigating the complicated mix of concerns that can arise when dealing with employee mental health issues.
Introduction: Over the past 10 to 15 years, U.S. employers have increasingly been encountering employee mental health issues that impact an employee’s ability to perform his/her job duties as expected and require some variety of reasonable accommodation. Navigating such mental health issues can be difficult on several levels – i.e., personal, professional, and operational. Complicating this landscape is the inherent relationship between mental health, addiction, suicide, and workplace violence, all of which have been trending in the wrong direction for some time.
The Big Picture
There are some obvious factors that have precipitated this mental health issue trend, including the ubiquitous use of cell phones, social media use, and the fallout from COVID. It appears that younger people have been significantly more adversely affected by mental health issues than older people, and women are more likely to be diagnosed with anxiety and depression than men by a significant margin. However, men are roughly two times more likely to die from alcohol and two to three times more likely to die of a drug overdose than women, plus men are significantly more likely to die by suicide than women (almost 4:1). Interestingly, a study conducted by Mercer and Global Disability Inclusion found that approximately seven percent of the workforce is comprised of employees with disabilities. About half of those identified their primary disability as a mental health condition, which does not include cognitive/learning (attention deficit, autism, dyslexia etc.) or neurological disabilities (MS, cerebral palsy, seizure disorder, Parkinson’s etc.). Of that group, roughly 51 percent identified anxiety and/or depression as their primary disability.
What Do These Trends Mean for the Workplace?
Obviously, these trends mean that employers will continue to encounter employee mental health issues on a regular basis in the near future. Employers need to be fully aware of these issues, how to identify them, and how to address them. In that regard, employers must have legally compliant policies and procedures (including an effective reporting procedure) that enable them to address these issues in a timely and legal manner. Similarly, employers should ensure that their group healthcare plan provides readily accessible and understandable information regarding available mental health resources, including EAP resources, and how to access them.
As we have seen a rise in the prevalence of mental health issues, we have also seen a rise in addiction, suicide, and other issues where mental health can be a component. These issues are almost always inextricably intertwined and can be difficult to manage. Accordingly, training management personnel on the basics (i.e., what these issues entail, how to identify them, how to respond, how to discuss them with an employee, and the applicable reporting and reasonable accommodation process) is necessary.
Primary Issues for Consideration
The stigma and shame that have been associated with mental health issues seem to be fading in our society, in part because people have become more open about discussing mental health. One very public example of this is Simone Biles, as discussed by FordHarrison Associate Meron Squires in a recent EntertainHR blog post.[1] Despite these advances, employees often still feel reluctant to discuss mental health issues with their employer. Therefore, employers must be vigilant about timely identifying such mental health issues. Examples of things to be aware of are unexplained absences, a change in ability to meet performance expectations, or a change in behavior. If you observe these issues, address them sooner rather than later. Meet with the employee to confirm understanding of the applicable expectation (attendance, performance, and/or behavior), your observation that they are not meeting the expectation, inquire why they are not meeting the expectation, and collectively problem solve on how to address the issue effectively and successfully – with applicable consequences both positive and negative.
Addressing such issues from a personal problem-solving perspective tends to be most effective, as it creates trust and rapport with the employee in question, which is critical. Let the employee know that you and the company are willing to help them, as needed, but they must actively participate. Candor is critical, as the employee needs to understand the importance of successfully addressing such an issue, as well as the consequences if it is not successfully addressed. Directly incorporating trained human resources professionals into the discussion in a timely manner is necessary.
When an employee discloses a mental health issue or diagnosis, you need to know how to navigate the basics. Mental health issues often implicate the Americans with Disabilities Act (ADA), handling of confidential information, and sometimes the Family and Medical Leave Act (FMLA). First, you will need to make sure that you engage in the ADA interactive process per your company’s policy. Many complaints of discrimination and/or retaliation can be avoided by ensuring that your managers and human resources department are properly trained on this process and consistently utilize that procedure in response to every employee report of disability and request for accommodation. There must be both consistency of process, and to the extent practicable, consistency of outcome in terms of reasonable accommodation.
After receiving a request for accommodations, you will need to work through the interactive process to understand what limitations the employee has when performing his/her essential job functions, whether those limitations are temporary or permanent, and what recommendations the employee and his/her medical provider have regarding reasonable accommodation options that enable the employee to successfully perform his/her job functions. To be “a qualified employee” under the ADA, the employee must be able to perform his or her essential job functions with or without reasonable accommodation without creating “an undue hardship” or presenting “a direct threat” of harm to himself/herself or others. Obtaining appropriate medical input from the employee’s medical providers is a critical part of this analysis process, and at times, obtaining a fitness-for-duty exam from a qualified medical provider of the employer’s choosing is appropriate.
Accommodation requests can be as simple as an individual with ADHD requesting to wear noise-canceling headphones to reduce distractions or requesting a block of leave for inpatient treatment, as compared to more complicated issues like intermittent leave (which is quite common with mental health issues such as depression). Leaves of absence can implicate the FMLA, as well as the ADA, so it is important to make sure that you have sufficient supporting medical information to make an initial decision on such a request. Given that such issues tend to exist across extended periods of time (years and at times decades), the interactive process needs to be ongoing, such that it effectively addresses the employee’s accommodation needs as they evolve, while at the same time ensuring that the business meets its operational readiness needs and requirements.
It is also important to ensure that any medical information provided as part of an ADA accommodation request or FMLA request is kept in a separate, confidential folder to avoid any inadvertent disclosure of personal medical information. And managers need to understand that discussing such issues should be handled on a need-to-know basis only to ensure appropriate confidentiality.