A new era of mental health in the workplace; FMLA and ADA implications

A new era of mental health in the workplace; FMLA and ADA implications

Excerpted from a Ford & Harrison LLP Blog by Viktoryia Johnson

There’s no denying the COVID-19 pandemic has changed the landscape of the workplace. For better or worse, what is certain is the pandemic, now in its third year, has forced U.S. workers and employers to gradually become more aware of mental health in the workplace.

Both the Wage and Hour Division of the U.S. Department of Labor (DOL), which enforces the Family and Medical Leave Act of 1993 (FMLA), and the Equal Employment Opportunity Commission (EEOC), which enforces the Americans with Disabilities Act of 1990 (ADA), have signaled interest in enforcing compliance. Employers are well-advised to understand their legal obligations.

Mental Health Statistics
About one-fifth of U.S. workers suffer from mental illness, but only half of them seek treatment. The failure to seek care is historically blamed on the stigma associated with mental illness. That’s a problem for individuals, but it’s also a problem for employers. Untreated mental health conditions cost U.S. companies billions of dollars every year. Untreated mental health may cause poor performance and burnout. Mental health issues can also create physical disorders including heart disease and diabetes, further decreasing physical performance.

Prior to COVID-19, policies regarding mental health were “nice-to-haves.” In the pandemic era, they are now “must-haves.” Indeed, reports indicate COVID-19 has had serious effects on mental health and cases have skyrocketed, including tens of millions of new cases of depression. Today, COVID-19-related mental health issues are said to have become the “second pandemic.”

DOL’s New Guidance
To increase awareness and in recognition of May being Mental Health Awareness Month, the DOL recently issued new FMLA mental health resources.

FMLA covers all U.S. states and provides eligible employees up to 12 weeks of unpaid, job-protected leave for specified reasons, including medical and family leave. FMLA protects employees from losing benefits and their current position if they need to take leave.

What follows are examples of when employees would be entitled to FMLA leave, assuming they work for a covered employer and are eligible:

    • An employee who reports being unable to work because of severe anxiety and who sees a physician monthly to manage symptoms;
    • An employee who is under care of a psychologist and attends therapy sessions regularly for anorexia nervosa. The employee may take FMLA for treatment visits and therapy sessions;
    • An employee whose adult child was recently released from inpatient treatment for mental health and is unable to work or go to school and needs help with daily activities;
    • An employee who attends a family counseling session for their spouse who is in an inpatient treatment program for substance abuse;
    • An employee whose parent, after the employee’s other parent passed away, began to see a doctor for depression and needs assistance with self-care. The employee may use FMLA to take the parent to medical appointments.

EEOC’s Cases
The EEOC has demonstrated it is serious about pursuing cases where the employer subjected an employee to adverse action when mental health was involved.

On Dec. 18, 2020, the EEOC issued a press release stating a Florida electronics manufacturer had agreed to pay $35,000 to settle a disability discrimination lawsuit. The company unlawfully fired an employee after she was hospitalized for depression. When she returned to work, the company stripped her of her duties and demoted her. The company terminated her about four months after hospitalization. The EEOC took the position the conduct violated the ADA. In addition to $35,000, the three-year consent decree required the company to appoint an ADA coordinator, distribute a written policy against disability discrimination, and to conduct anti-discrimination training. The company was also made to post a notice about the lawsuit and submit annual written reports to the EEOC.

Conclusion
Mental health is at the forefront of the DOL’s and the EEOC’s attention, with both agencies demonstrating they’re intent on pursuing violations. In light of current events including political unrest, mass shootings and the Ukraine war, it’s more important than ever for employers to be sensitive to workers’ and their family members’ mental health needs, not only to maintain productivity, but to avoid costly litigation.

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