It is well known that the year-end holidays can be difficult for some individuals, particularly those suffering with mental health conditions. According to the Centers for Disease Control (CDC), the number of visits to physician offices with mental illness as the primary diagnosis is: 55.7 million. FastStats - Mental Health (cdc.gov) (based on data from the 2021 National Health Interview Survey). Further, the Equal Employment Opportunity Commission (EEOC) reported that about one in five adults experienced mental health issue in 2020. Mental Health Conditions: Resources for Job Seekers, Employees, and Employers | U.S. Equal Employment Opportunity Commission (eeoc.gov)

As a good and responsible employer, you should ensure your employees are aware of the health and leave benefits available to them, not only with respect to physical health but mental health as well. Also remember that mental health conditions can be just as, or even more debilitating than, a physical injury.

Here are important considerations when addressing and working with employees claiming to suffer from mental illness.

Consideration 1: Mental Health Issues Are Often Protected Under the Law

Since mental health conditions are not always obvious, some employers do not take them as seriously as physical injuries. Even worse, employers express doubt as to whether the employee is suffering. This is a mistake from both employee relations and legal liability standpoints.

Mental health conditions are often protected by the American with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). Further, check your state laws as well.

Under the ADA, employees who suffer from disabilities, including mental health disabilities, are protected from discrimination and entitled to reasonable accommodations so they may perform the essential functions of their job.

The EEOC has stated that mental health conditions such as major depressive disorder, PTSD, bipolar disorder and schizophrenia substantially limit brain function and accordingly, "individuals with these disorders will, in virtually all cases, be determined to have an ADA disability."

The EEOC has several resources and publications on this issue, some of which are set forth below:

Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights | U.S. Equal Employment Opportunity Commission (eeoc.gov)

Mental Health Conditions: Resources for Job Seekers, Employees, and Employers | U.S. Equal Employment Opportunity Commission (eeoc.gov)

The Department of Labor (DOL) in 2022, issued a fact sheet, FAQ and a blog post on mental health and the FMLA. Per DOL guidance, no FMLA eligible employee should "ever worry or hesitate to request time off due to a serious mental health condition." See the fact-specific examples from the DOL:

Employee's own mental health condition. "Karen is occasionally unable to work due to severe anxiety. She sees a doctor monthly to manage her symptoms. Karen uses FMLA leave to take time off when she is unable to work unexpectedly due to her condition and when she has a regularly scheduled appointment to see her doctor during her work shift"
Leave to care for a Family Member with a mental health condition. "Wyatt uses one day of FMLA leave to travel to an inpatient facility and attend an aftercare meeting for his fifteen-year-old son who has completed a 60-day inpatient drug rehabilitation treatment program."
Leave to care for an Adult Child with a Mental Health Condition. "Anastasia uses FMLA leave to care for her daughter, Alex. Alex is 24 years old and was recently released from several days of inpatient treatment for a mental health condition. She is unable to work or go to school and needs help with cooking, cleaning, shopping and other daily activities as a result of the condition."

Links to these resources are below,

Fact Sheet #28O: Mental Health Conditions and the FMLA | U.S. Department of Labor (dol.gov)

Mental Health and the FMLA | U.S. Department of Labor (dol.gov)

"Mental Health at Work: What Can I Do" PSA - What Can YOU Do? (whatcanyoudocampaign.org)

Consideration 2: Promote A Positive Company Culture of Support and Assistance

Many employees are reluctant to request any type of leave, job protected or not, if they are suffering from a mental illness.

Employers should be mindful of this and take steps to ensure they create a work environment that makes employees comfortable to come forward to request accommodations and address other issues that could assist them in the workplace. This may be accomplished through training all employees on this issue, keeping an open door policy, and providing notices in policies and handbooks relating to mental health benefits and resources including any Employee Assistance Programs (EAPs).

Employees should also implement and enforce a strong anti-discrimination policy emphasizing that employees with mental health issues have rights and should feel comfortable submitting complaints for any perceived violations of employer policies relating to failure to accommodate due to their mental health disability.

Further, employers should train Human Resources and supervisors on confidentiality of medical information related to an employee's mental health condition. Such information should be maintained by HR only, in a separate confidential file.

Consideration 3: NEVER make assumptions!

This point is particularly important and where employers often get into trouble.

Sometimes, employers make assumptions that an employee's mental illness can make him or her a direct threat to the safely of others as defined by the ADA.

Although the ADA provides that an employee may be prohibited from returning to work if he or she is a "direct threat" in the workplace, remember this is a very narrow exception. Direct threat is defined as "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation."

Whether an employee poses a direct threat requires an individualized assessment and objective, factual evidence – not subjective perceptions, irrational fears, patronizing attitudes, or stereotypes - about the nature or effect of a particular disability, or of disability generally.

See EEOC Informal Discussion Letter | U.S. Equal Employment Opportunity Commission

Blindness and Vision Impairments in the Workplace and the ADA | U.S. Equal Employment Opportunity Commission (eeoc.gov)

29 CFR § 1630.2 - Definitions. | Electronic Code of Federal Regulations (e-CFR) | US Law | LII / Legal Information Institute (cornell.edu)

Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA | U.S. Equal Employment Opportunity Commission (eeoc.gov)

Therefore, if you truly believe an employee is a direct threat due to his or her mental illness, make sure you have conducted an individualized assessment of the appropriate factors, follow the EEOC guidance and regulations on this issue, and confer with employment law counsel before making any decisions.

Matrix Can Help!

Matrix offers integrated FMLA/leave of absence, ADA, and integrated disability management services which will help employers manage leave for employees with mental health illnesses, as described above. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.