Employees may experience stress and anxiety in ways and to degrees that impact the employment relationship. While that statement is not news to employers, it is important to know that government agencies are paying closer attention to these issues. Both the Department of Labor and the Equal Employment Opportunity Commission have issued guidance highlighting employee rights related to mental health issues under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). Increased agency attention is an indicator of increased agency enforcement. With that in mind, here are some key takeaways and best practices when dealing with stress, anxiety, and the employment relationship.
FMLA: A mental health condition can qualify as a serious health condition if it requires inpatient care or continuing treatment by a healthcare provider. As with all qualifying health conditions, a passing reference can be enough to put an employer on notice. The employee does not need to specifically reference the FMLA, as long as they provide enough information for the employer to recognize a potentially FMLA-qualifying condition.
ADA: Stress and anxiety can rise to the level of a disability under the ADA (and parallel state and local laws). As a result, employers must go through the "interactive process" with employees (and applicants) to determine whether there is a reasonable accommodation available that would enable the employee to perform the essential functions of the job.
Once the interactive process is initiated, employers should document all conversations related to the request, discussion, considerations, and the ultimate decision. Note: It is generally recommended to obtain a medical certification from a healthcare provider confirming the legitimacy of the employee's stress and anxiety and need for an accommodation under the ADA.
Employers are not required to implement an employee's preferred accommodation. Rather, the company can use its discretion and adopt reasonable accommodations to resolve the issue. Moreover, a "reasonable accommodation" is not an accommodation that: (1) would result in an "undue hardship" on the employer's operations, (2) is unrelated to the employee's disability, or (3) will not be effective in allowing the employee to perform the essential functions of their job. Note: The undue hardship analysis can be complicated, and employers should consult with trained HR or legal counsel before denying an accommodation on such grounds.
Train Manager and Supervisors
Employers have a duty to engage and respond to direct requests under the ADA and FMLA. Some employers forget, however, that many of the same duties and obligations arise if the employer is simply made aware of an employee's need for available FMLA or ADA benefits, even if that awareness is not from a direct request. There are no magic words needed to trigger an employer's duty under these laws, and employees may be increasingly inclined to bring up their mental health challenges in informal workplace settings.
Accordingly, supervisors and managers should be trained to recognize and respond to a potentially qualifying condition and refer the employee to HR. Likewise, supervisors and managers should be trained on how to communicate with employees (and their coworkers) about personal medical information and any requested/approved accommodation.
In summary, employers should not ignore mental health issues in the workplace. Recognizing and responding to these potentially sticky situations can be difficult, but a company's failure to do so can create significant liability issues.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.