Mental health is important for your employees as well as your business and although mental health is not necessarily a new topic for employers, its role in the workplace has become more pronounced during the pandemic as employees adjusted to a “new normal” in their professional lives.

Many organizations are aware of the pandemic’s threat to their workers’ mental state and have increasingly implemented policies and initiatives that advance the discussion around mental health at work. However, kindness and good intent toward improving your employees’ psychological health through office perks like healthy snacks and subsidized gym memberships are not the determining factors of your business’s mental health-friendliness as it relates to the law. Here are the legal obligations and best practices that employers need to consider to protect their company and employees.

Legal Obligations for Mental Health In the Workplace

Variables such as high-stress levels, extreme fatigue, anxiety, depression, PTSD, and addiction are all challenges that can potentially interfere with an employee’s work performance. In some of these cases, these variables may be classified as a disability that substantially restricts one or more of an employee’s major life activities beyond the workplace. The following federal and California state laws govern how employers should approach these disabilities: 

ADA and Psychiatric Disability

The Americans with Disabilities Act (ADA) defines disability as a “physical or mental impairment that substantially limits one or more major life activities.” Job candidates or employees with a recognized physical or mental health issue possess workplace protections from the ADA or the ADA Amendments Act of 2008. Recently, the scope and definition of impairment have expanded to further protect individuals struggling with mental disabilities, such as those with psychiatric problems, from workplace harassment and discrimination.

Employers must be aware of the fact that, based on the definition of ADA, workers and employees suffering from psychiatric disabilities possess two primary privileges. These workers have (1) the right to privacy and can choose to disclose or not disclose their impairment, and (2) are entitled to reasonable accommodations during work (unless doing so would cause the employer “undue hardship”). 

When an employee’s mental health condition is classified as an impairment under the ADA, rights for the worker (including affirmative responsibilities for the employer) are triggered. Employers need to abide by the following ADA guidelines: 

  • Prejudice toward employees and job candidates based on disabilities when hiring or terminating is prohibited.
  • Harassment based on disability is prohibited.
  • If the need for accommodation becomes known, employers are obligated to communicate directly with employees to find a solution that is reasonable.
  • Retaliation against an accommodation request is prohibited.

Accurately determining if a mental health condition is classified as a disability under the ADA can involve substantial factual and legal analysis, as there are many minute details that can go into each ADA-covered disability case. See the US Equal Employment Opportunity Commission’s guidance on the ADA and Psychiatric Disabilities for more in-depth information on how employers should approach specific circumstances.

FMLA and Serious Health Condition

The Family and Medical Leave Act (FMLA) seeks to protect the work-life balance of employers and their workers in the US by allowing up to 12 weeks of unpaid, job-protected leave in a 12-month period. Mental health conditions are classified as serious health conditions under the FMLA and therefore when employees take time off due to mental health disorders, their jobs remain protected.

Who can make use of FMLA leave?

Qualifying workers: Workers must have worked for a qualified employer for at least a year, have spent at least 1,250 hours on company service throughout the 12 months preceding the absence, and are employed at a site where their employer does have a minimum of 50 workers inside a 75-mile radius.

Covered Companies: Under the rules of FMLA, a private company is a protected employer if it has 50 or more employees who have worked for 20 or more weeks in the current or previous year. This includes joint employers and employers who take over for another protected contractor. Public agencies, like municipal, state, or federal departments, as well as schools, either public or private elementary and secondary establishments, are protected by the FMLA, no matter how many workers they have.

FMLA can be utilized for unpaid absence or concurrently with company paid leave.

A qualified employee could use FMLA absence to provide for a partner, their children, or a parent with a severe health condition and a life-threatening personal illness. In the case of mental health problems, they may qualify. Both mental and physical medical issues are deemed significant health issues and conditions when they call for either hospitalization or ongoing medical attention.

Employers are not allowed to hinder, prevent, or restrict an employee’s ability to use their FMLA rights. The FMLA’s privileges cannot be interfered with, restrained from, or denied in any way if there is an infraction of the law or its rules. When employees believe that their rights are being violated, they could submit a petition to the US Department of Labor to take action.

California State and Local Mental Health Legislation

Fair Employment and Housing Act of California (FEHA) 

Every employer in California with a minimum of 5 employees is subject to the Fair Employment and Housing Act of California (FEHA). Under the FEHA, employers are prohibited from refusing to hire, terminating, or discriminating against employees based on a physical disability, mental disability, or medical condition. This legislation defines mental disability broadly to include conditions like intellectual disabilities, emotional and mental illness, and learning disabilities. An employee may establish a claim if a mental disorder or condition limits a major life activity. 

Furthermore, under FEHA, employers must make “special or reasonable accommodations” for applicants suffering from a qualified “mental disability” so they can execute the essential duties of their position. In the circumstance that providing a reasonable accommodation causes an “undue burden,” an employer may be exempt from these requirements. As the number of discrimination lawsuits continues to grow, it is important that employers also understand their rights as it relates to exemption. 

California Family Rights Act (CFRA) 

Like the FMLA, the California Family Rights Act (CFRA) allows employees to take a leave of absence for mental health reasons that are classified as “serious health conditions.” Public and private organizations are subject to this law. Unlike FMLA, private employers must have just 5 or more employees to be considered a covered employer.

Under CFRA, an employee’s disability will qualify as a serious health condition if they suffer from an illness, injury, impairment, or physical or mental condition that involves one or more of the following:

  • Inpatient care in a hospital, hospice, or residential health care facility, or
  • Continuing treatment or supervision by a health care worker.

The mental health condition that qualifies must also make it difficult or prevent an employee from fulfilling their duties. CFRA-covered employers are subject to allow eligible employees up to 12 weeks of unpaid, job-protected leave. 

Remember that some states will have unique laws that the previously described federal and state legislation might not cover. Employers are advised to consult their state and local laws. 

Best Practices to Support Workplace Mental Health

During troubling times, employees hope for someone to help them overcome their current and upcoming challenges. As their employer, you have a role in guiding, assisting, and leading them to surpass these variables that affect their performance. Employers should focus on having policies in place that benefit and support workers’ emotional, physical, and financial well-being. This can range from having mental health plans and offering employee assistance programs to implementing mobile health applications and introducing diverse financial initiatives and options for employees.

Although the legal implications of providing a safe and supportive workplace for employees struggling with mental illness are still unclear, doing so is considered best practice and may even help with recruitment. 

Key Accommodations

Since work accommodations are tailor-made for everyone, compiling a list of workplace modifications and accommodations that connect to the company can greatly aid mental health disorders.

For example, in the event of a mental health issue concerning memory loss, employers can implement the following things to facilitate improved accommodations:

Products that can aid:

  • Timers or Wrist Watches
  • Desk Calendars and Book Planners
  • Small Notepad and WhiteBoard

Feasible Strategies:

  • Color Coded System
  • Support Person
  • Task Flow Chart
  • Written Forms and Instructions
  • Written Guidelines

What You Should Know as an Employer

Your duty as an employer begins at the hiring process and continues for the duration of your employees’ employment. When you are hiring, you need to have policies and regulations in place that help you recruit and evaluate eligible disabled personnel – fairly. When it comes to training and onboarding, you must have excellent training and supervision in place to help incorporate disabled workers into the workplace. To keep your employees’ workplace conditions healthy and positive, you must understand how to employ disabled workers, recruiting tactics, and restrictions. You must also be aware of accommodations that need to be in place for such workers. Lastly, in order to have great workforce retention, it is essential to develop management solutions for recruiting qualified individuals having impairments. These are normally simple and cost-effective to execute.

Key Takeaways

In these turbulent times, navigating workplace conditions for your employees in a post-COVID world may seem confusing but it is important that employers do their due diligence to set forth policies and guidelines that help manage situations where your employees might be navigating mental health issues. The ADA, as well as the FMLA, will help you plan out complementing strategies for employees wanting and seeking compensated absences to address their health concerns. If you need assistance with implementing and standardizing mental health policies in the workplace, please contact Hackler Flynn & Associates.

DISCLAIMER: Content within this post should not be considered legal advice and is for informational purposes only. Communications made through this post do not create an attorney-client relationship. Hackler Flynn & Associates is not responsible for any content that you may access from third-party resources that may be accessed through or linked to this post. Hackler Flynn & Associates is only licensed to practice in California.

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