The COVID-19 pandemic and resulting economic downturn, plus a summer of social unrest have highlighted the growing need for mental health support in the workplace (see our previous article, Responding to mental health needs during unsettled times). Even employers that have (or are working toward) a culture that supports employee mental health and well-being, employers should also be aware of the compliance obligations related to the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA), and need to be prepared to meet those obligations.
For example, employees who call in sick for multiple days due to depression or who proactively ask for time off from work due to a mental health condition may be entitled to a legally protected leave of absence under the Family and Medical Leave Act (FMLA) or other reasonable accommodation under the Americans with Disabilities Act (ADA).
In addition to taking proactive steps to combat mental health issues, employers need to be prepared to respond to their employees when their mental health is interfering with their ability to do their jobs, when they are in crisis or when they asking for help. From front-line managers and supervisors to human resources professionals, employers need to be aware of their obligations under these laws to ensure compliance and provide their employees with opportunities for a successful outcome and continued employment relationship.
The ADA generally protects individuals with disabilities from employment discrimination. This means that covered employers may not discriminate against their disabled employees with regard to the terms and conditions of employment, including hiring, firing, compensation, training, leaves, or other employment-related benefits
Qualified individuals with disabilities, including those employees whose mental health condition rises to the level of a disability, are also entitled to reasonable workplace accommodations that would allow them to perform their essential job functions. A reasonable accommodation is a modification or other adjustment to a job or the work environment that will allow a qualified individual with a disability to continue to perform their essential job functions. Employers are required to provide their disabled employees with reasonable accommodation when requested, unless doing so would cause the employer undue hardship.
Mental health issues like depression and anxiety can cause a variety of workplace challenges including lowered productivity and employee engagement. Mental health impairments, such as bipolar disorder, major depression, seasonal affective disorder, PTSD and obsessive-compulsive disorder can also disrupt an employee’s thinking, feeling, mood and daily functioning, including an employee’s ability to successfully perform their essential job functions.
According to the EEOC, examples of mental health conditions that would qualify as disabilities under the ADA may include:
To help employees struggling with mental health issues, employers can take the following steps immediately:
1. Include an ADA policy in your employee handbook
Employers are strongly encouraged to include a robust ADA reasonable accommodation policy in their employee handbook, not only to ensure compliance and provide guidance on responding to requests, but also so employees know what to do, where to go, and how to request reasonable accommodations if and when mental health issues interfere with the ability to do their jobs.
While having an ADA policy in an employee handbook is not required, it is highly recommended, as it serves to educate and reassure employees who are in the middle of a mental health crisis or suffering from stressors that they can and should ask for help. Clients with access can contact the Hotline for a sample ADA policy for your handbook.
2. Make it easy to ask for help
To ensure compliance with the ADA, as a best practice, employers should make it easy for employees to ask for help. This means that an ADA policy should not require onerous requirements for employees who request accommodations. This is even more important for employees that are suffering from mental health issues or stress, as they may be more reluctant to ask for help and may need more assistance along the way.
Managers should understand that employees do not have to use any magic words when asking for help and should recognize if and when an employee’s situation should be referred to human resources for additional assistance. Managers and supervisors do not need to be mental health professionals, but they should be trained in the basics of ADA compliance.
In addition, managers and supervisors that can recognize some of the warning signs of employees struggling with mental health issues will be more likely to act with compassion and be in a position to start a conversation with their employees and refer to employees to appropriate resources as needed, such as the company’s employee assistance program (EAP), if any, and/or HR.
3. Be prepared to respond to requests for reasonable accommodations
Employers must also be prepared to respond appropriately when their employees request reasonable accommodations for their mental health conditions under the ADA. ADA compliance requires engaging in an interactive process with disabled employees who request reasonable accommodations. See our previous article on the ADA interactive process.
An interactive process generally means one or more discussions between the employee and the employer to determine what accommodations are needed. Employers engaging in an interactive process with employees who have mental health issues may want to start by considering a variety of questions. For example:
Once accommodations are in place, employers should meet with the employee to evaluate the effectiveness of the accommodations and to determine whether additional accommodations are needed.
In addition, because mental health issues are not obvious, employers are entitled to and may want to request medical substantiation of the employee’s mental limitations and potential accommodations that would allow the employee to continue to work safely and effectively in their jobs.
Note that for employees who are experiencing mental health issues, such as anxiety or depression, the disabling condition itself can also be a barrier to finding a solution. Employers need to take extra care to ensure compliance when employees request accommodations for mental health issues and commit to engaging in a robust interactive process to determine what accommodations would allow the employee to continue to work. Clients with access can contact the Hotline for a copy of our ADA Reasonable Accommodation Request Form.
Finding a reasonable accommodation
Reasonable workplace accommodations can include a variety of adjustments, modifications or changes to the workplace. For example, employees who struggle with concentration issues may need more frequent reminders of deadlines or tasks, more frequent short breaks, a quieter work environment, or may need to work from home. Employees experiencing anxiety may benefit from a flexible work schedule or a modified break schedule to cool down and regulate stressors.
Note that employers do not have to provide a reasonable accommodation if doing so would cause undue hardship to the business. That said, concerns about employee perception or an opening of the “floodgates” are not generally considered an “undue hardship” such that an employer could refuse to provide the accommodation. In other words, just because you are concerned everyone will ask for an accommodation if one is granted is not enough reason to deny a request.
Reasonable accommodations for individuals with disabilities should always be determined on a case by case basis. Employers and employees should understand that modifying workplace policies and providing other accommodations for employees with mental health struggles does not mean condoning bad behavior or accepting poor work performance. It does mean assisting employees in working around barriers and struggles to allow them to continue to work, contribute, and flourish.
Employees with mental health issues may be entitled to job protected leave under the FMLA for mental health issues or to seek medical assistance for mental health. The FMLA provides eligible employees with up to 12 weeks of job-protected leave during a 12-month period for qualifying reasons, including when an employee’s mental health condition rises to the level of a serious health condition, as defined in the FMLA, or to care for a family member with a serious health condition. The FMLA generally applies to private employers with fifty or more employees as well as public agencies and public or private elementary and secondary schools.
FMLA qualifying leave is unpaid time off, although employees are entitled to use their paid time off (PTO) or other applicable benefits offered by their employer, such as short-term disability, or sick pay during their leave.
FMLA leave can be taken in a block of time, such as a two week period to recover from an acute illness or injury, on an intermittent or reduced schedule basis, such as a reduced schedule of 4 hours per day, or even on an episodic basis, if medically necessary.
Employers should be aware that employees who ask for time off due to a mental health condition may be entitled to job protected leave under the FMLA (see our previous article, Workplace stress and the FMLA: A good offense is a great defense). Employees entitled to FMLA leave due to mental health or other qualifying issues do not need to expressly ask or even mention the FMLA by name when requesting leave the first time, making compliance issues tricky in many cases. However, once an employee has requested FMLA for a qualifying reason, then for subsequent absences, the employee must reference their qualifying reason or reference the need for FMLA.
Like the ADA, employees who suffer from chronic or acute mental health conditions may be entitled to job-protected leave and time away from work when the condition rises to the level of a serious health condition. Employees may be entitled to time away because of their incapacity and inability to work or can request leave to seek treatment for their mental health condition.
In order to comply with the FMLA and provide required notice to employees, covered employers should take the following steps immediately:
1. Post a written notice explaining rights and responsibilities under the FMLA
Covered employers must display a poster prepared by the U.S. Department of Labor (DOL) summarizing the major provisions of the FMLA and informing employees how to file a complaint. The poster must be displayed in a conspicuous place where employees and applicants for employment can see it. A poster must be displayed at all locations even if there are no eligible employees. Download a copy of the poster from the DOL website.
2. Include a detailed FMLA policy in the employee handbook
As a best practice and for compliance purposes if the employer has any eligible employees, covered employers should have a robust FMLA policy in their employee handbook. This policy should serve as a general guide for employers, managers and human resource professionals setting forth the eligibility requirements for FMLA, along with information for employees on how to request FMLA leave.
In particular, employers must set forth the 12-month period that they use to track FMLA leaves. This can be a calendar year, a fixed year, or a rolling 12-month period measured backward from the date that FMLA leave is used.
Employees who take FMLA leave are entitled to return to their job at the end of their FMLA leave. Employers are required to maintain an employee’s health benefits during FMLA leave, although employers may require employees continue to make premium payments during the absence. A good, compliant FMLA policy will clearly set forth these basic rules governing FMLA use and procedures. Clients with access can contact the Hotline for a sample FMLA policy.
Although having a policy and a poster provides the required notice under FMLA, the policy itself probably won’t mention mental health in particular. Like the ADA and other medical leave laws, there generally isn’t a list of particular mental or physical illnesses or injuries that may qualify for protection under the statute. Employers should consider making sure their managers and supervisors have a working knowledge of the FMLA and its protections. See our previous article, Are your managers trained on FMLA obligations?
In addition, employers may want to cross-reference different resources or benefit summaries (e.g., EAP, wellness program, etc.) in their written FMLA policy, to make sure that employees and managers are aware of the different options that may be available.
3. Prepare to respond to FMLA requests
Like the ADA, employees do not have to use any magic words or even reference the FMLA by name to be entitled to protection under the FMLA. In fact, many employees who are entitled to FMLA may not even be aware of the FMLA and do not formally ask for “FMLA leave.” For this reason, employers, including supervisors and managers, must be aware of FMLA protections and be ready to contact human resources if they think that FMLA leave may apply.
The most common serious health conditions under the FMLA relative to mental health issues include:
Once notified that an employee has requested leave that may be FMLA-qualifying, the employer must take steps to comply with the statute, including providing an initial notice of eligibility and rights document and a designation notice approving or denying the leave. While medical certification of a serious health condition is not required by the FMLA, it is a best practice to request and obtain certification from a medical provider.
Caring for family members
Employers who receive requests for time off from employees to care for family members should remember that the FMLA may entitle the employees to protected leave for this purpose. Employers should follow their regular procedure when a request is received for leave to care for a family member, by issuing a notice of eligibility and rights, requesting a certification from a healthcare provider, and then issuing a designation notice approving or denying the leave requested.
Non-legally obligated accommodation
If no legally-required accommodation (ADA) or protected leave of absence (FMLA) is applicable, the employer is largely free to choose to how it may handle a particular situation. While we always recommend maintaining a uniform and consistent process for making accommodation determinations, it is inevitable that each situation will be different and may require analysis that considers the facts and circumstances unique to such a request. Factors that may determine how an employer considers accommodating employees with non-ADA-related needs include:
In addition to individual accommodation, organizations should consider how to create a more accepting culture around mental health issues, working to eliminate stigma and bias associated with mental and emotional health concerns (see our previous article on supporting mental health in the workplace). As we’ve mentioned earlier, training leaders to identify common signs of distress and equipping them with the language and resources to offer assistance will go a long way in ensuring that employees know that mental health is a priority in their work environment. Contact us for additional resources and guidance on managing mental health in the workplace.
Janice Pintar has extensive litigation experience in the field of employment law and was a plaintiff’s attorney for nearly thirteen years before becoming an HR Consultant in 2015.
Janice Pintar has extensive litigation experience in the field of employment law and was a plaintiff’s attorney for nearly thirteen years before joining Associated Financial Group’s HR Consultants in 2015. She educates and advises Human Resources professionals and employers on a broad range of employment issues and best practices and costly litigation compliance topics including respectful workplace practices, unlawful harassment avoidance, wage and hour issues, medical leaves and accommodations, as well as federal and state discrimination and anti-retaliation issues. Janice received her undergraduate degree from the University of Wisconsin-Milwaukee, magna cum laude, and her law degree from the University of Wisconsin, cum laude.
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While WESA directly impacts employers who conduct business in Minnesota, the changes follow plans by federal and local governments to expand legal protections for women and other employees. For this reason, employers in other jurisdictions should pay close attention to these national and state law trends.
The Family Medical Leave Act (FMLA) is more than 20 years old, yet employers have many questions on how the law applies to their workforce. Unfortunately, mistakes in the application can have significant business and legal consequences.
Making FMLA mistakes can be costly, and many employers make mistakes they don’t even know they are making. Let’s take a look at five common leave-of-absence mistakes based on our experience with real clients from our HR Hotline.
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