An increasing number of employees are struggling with mental health issues and substance misuse disorders. According to data from the National Alliance on Mental Illness, in 2021, 1 in 5 adults (57.8 million) experienced mental illness, and 1 in 20 experienced serious mental illness.
The Occupational Safety and Health Administration (OSHA) reports that stress causes 120,000 deaths in the United States each year. More than 80% of Americans reported work-related stress. OSHA published a new webpage last fall designed to help employers and workers manage workplace stress.
This data likely confirms what businesses already know—many employees are burnt out, overwhelmed and struggling. Legal claims related to mental health conditions are on the rise. In 2022, more than one-third of all claims filed with the Equal Employment Opportunity Commission (EEOC) included disability-related claims. Of those claims, nearly 30% were based on alleged discrimination based on mental health conditions. Over a decade, the percent of EEOC claims involving a mental disability increased by nearly 20%. For example, in fiscal year 2010, the EEOC received 1,335 charges that referenced an anxiety disorder, which was 5.3% of all Americans with Disabilities Act (ADA)-based charges. In fiscal year 2022, that number increased to 3,086, which was 12.3% of all ADA-based charges. A similar increase occurred with respect to claims involving Post Traumatic Stress Disorder.
Employers face more than legal risks when it comes to ignoring the mental health of their employees—they also lose out on an opportunity to create a positive work culture that enhances productivity. A recent Gallup poll revealed that missed work due to mental health days will cost the economy $47.6 billion annually in lost productivity.
What Can Employers Do?
Employers should confirm that the company’s medical plan provides robust coverage for employees who seek medical care for mental health concerns and substance misuse disorders and includes an Employee Assistance Program (EAP) or arrange for an independent EAP. These programs typically offer a consultant to help employees explore strategies for dealing with various mental health and substance use problems.
It is important to educate supervisors on these benefits and then educate employees on how to access these benefits throughout the year. Many employers carve out time in May, which is National Mental Health Awareness Month, and in November, which is just prior to the holidays, to highlight some of the company’s benefits that aid with stress management.
Other companies also offer mindfulness and yoga apps and classes to assist with stress management. Studies have shown that there remains a negative stigma attached to the issue of mental health. Employers should take steps to create an inclusive workplace and ensure that workplace norms support mental well-being. This can be done by providing trainings to equip all employees with tools to support each other (for example, recognizing signs of distress), and fostering workplace community and connectivity.
Employers should also adopt a clear written policy in accordance with the ADA and applicable state law, and educate employees on how to request a workplace accommodation for a mental health disability. Supervisors and managers should also be separately trained on how to identify a request for an accommodation.
Employees do not generally invoke the ADA by name, but they do frequently express a need for help. If an employee raises a connection between their workplace performance and a medical condition, the ADA’s requirement to engage in an interactive process may be triggered. It is important for supervisors and managers to know how to identify such a request.
The ADA requires employers to provide reasonable accommodations to individuals with physical or mental disabilities unless doing so would cause an undue hardship. This requires the employer to engage in cooperative back and forth communication with the employee to determine if there is a reasonable accommodation that will allow the employee to perform the essential functions of the job. Frequently, the only response required by the supervisor or manager is, “how can we help?” to start the dialogue. It is important to keep in mind that a leave of absence may be a form of a reasonable accommodation.
When an employee asks for assistance, it is also important to consider whether other laws might apply. In addition to the protections afforded to employees by the ADA, the federal Family and Medical Leave Act (FMLA) may also provide protections for employees. The FMLA requires covered employers to provide up to 12 weeks of unpaid leave per year for their employees for certain qualifying reasons, including their own serious mental health condition.
Mental and physical health conditions are considered serious under the FMLA if they require inpatient care or continuing treatment by a health care provider. Last year, the U.S. Department of Labor, which is the agency responsible for enforcing the FMLA, issued a new fact sheet on “Mental Health Conditions and the FMLA” to remind employees about when they are eligible for FMLA leave due to a mental health condition. In some cases, workers’ compensation protections may also be triggered.
Employers are in a unique position to recognize the current mental health struggles of employees and make mental well-being a strategic priority. Implementing policies and practices to support employees’ needs will not only be beneficial for legal risk management, but it will also help to improve employee well-being, productivity and performance. n
Margaret “Peg” O’Brien, Esq., serves as director of the Litigation Department and vice chair of the Employment Law Group at McLane Middleton law firm in Manchester. She can be reached at margaret.obrien@mclane.com. For more information, visit mclane.com.
Current Issue - May 2024