Mental Health Issues are on the Rise the Workplace

Headshot - Peg O'Brien
Margaret "Peg" O'Brien
Director, Litigation Department and Chair, Employment Law Group
Published: Business New Hampshire Magazine
September 24, 2023

An increasing number of employees are struggling with mental health issues and substance-misuse disorders.  According to data from the National Alliance on Mental Illness, approximately one in five adults in the United States, or 57.8 million adults, experience an occurrence of mental illness each year, and one in twenty adults experience a serious mental health occurrence each year.  The Occupational Safety and Health Administration (“OSHA”) reports that stress causes 120,000 deaths in the United States each year.  More than 80 percent of Americans reported work related stress, and the same number report experiencing at least one symptom of stress, such as a headache, depression or feeling overwhelmed or anxious.  In light of these statistics, last fall OSHA published a new webpage designed to help employers and workers manage workplace stress.

All of this data likely confirms what businesses already know – many employees are burnt out, overwhelmed, and struggling. Unfortunately, legal claims related to mental health conditions are on the rise.  In 2022, more than one-third of all claims filed with the Equal Employment Opportunity Commission (“EEOC”) included disability-related claims.  Of those claims, nearly 30% were based on alleged discrimination based on mental health conditions. Over a ten-year time period, the percent of EEOC claims involving a mental disability increased by nearly 20%.   By way of example, in Fiscal Year 2010, the EEOC received 1335 charges that referenced an anxiety disorder, which was 5.3% of all Americans with Disabilities Act (“ADA”)-based charges.  In Fiscal Year 2022, that number increased to 3,086, which was 12.3% of all ADA-based charges.  A similar increase occurred with respect to claims of discrimination under the ADA involving Post Traumatic Stress Disorder.

Of course, employers face more than legal risks when it comes to ignoring the mental health of their employees.  Employers who ignore the mental wellbeing of their employees lose out on an opportunity to create a positive work culture that both enhances the lives of employees and their families and increases the productivity of individuals in the workplace.  Employees who are struggling with their mental health often miss work and fail to focus when they are at work.  A recent Gallup poll revealed that missed work due to worker mental health days will cost the economy $47.6 billion annually in lost productivity.

What are employers to do?  Employers can positively impact the mental health and wellbeing of their employees, reduce legal risk, and enable employees to live healthier lives by adopting a few key initiatives.

For one, employers should confirm that the company’s medical plan provides robust coverage for employees who seek medical care for mental health concerns and substance misuse disorders.  In addition, employers should confirm that the medical coverage includes an Employee Assistance Program, or make arrangements for an independent Employment Assistance Program.  These programs typically offer a consultant to help employees explore strategies for dealing with various mental health and substance use problems.  It is important to educate supervisors on both of these benefits and then educate employees on how to access these benefits throughout the year.

Many employers nowadays carve out time in May, which is national mental health awareness month, and in November, which is just prior to the holidays, to highlight some of the company’s benefits that aid with stress-management.  Other companies also offer mindfulness and yoga apps and classes to assist with stress-management.  Studies have shown that there remains a negative stigma attached to the issue of mental health.  Therefore, employers should consider steps to create an inclusive workplace ensuring that workplace norms support mental well-being, and providing trainings to equip all employees with tools to support each other (for example, recognizing signs of distress), and fostering workplace community and connectivity.

Employers should also adopt a clear written policy in accordance with the ADA and applicable state law and educate employees on how to request a workplace accommodation for a mental health disability.  Supervisors and managers should also be separately trained on how to identify a request for an accommodation.  Employees do not generally invoke the ADA by name, but they do frequently express a need for help.  If an employee raises a connection between their workplace performance and a medical condition, the ADA’s requirement to engage in an interactive process may be triggered.  It is important for supervisors and managers to know how to identify such a request.  The ADA requires employers to provide reasonable accommodations to individuals with physical or mental disabilities unless doing so would cause an undue hardship.  This requires the employer to engage in cooperative back and forth communication with the employee to determine if there is a reasonable accommodation that will allow the employee to perform the essential functions of the job. Frequently, the only response required by the supervisor or manager is, “how can we help?” to start the dialog. It is important to keep in mind that a leave of absence may be a form of a reasonable accommodation.

When an employee asks for assistance, it is also important to consider whether other laws might apply. In addition to the protections afforded to employees by the ADA, the federal Family and Medical Leave Act (the “FMLA”) may also provide protections for employees.  The FMLA requires covered employers to provide up to 12 weeks of unpaid leave per year for their employees for certain qualifying reasons, including their own serious mental health condition.  A serious health condition can include a mental health condition.  Mental and physical health conditions are considered serious health conditions under the FMLA if they require inpatient care or continuing treatment by a health care provider.  Last year, the US Department of Labor, which is the agency responsible for enforcing the FMLA, issued a new fact sheet on “Mental Health Conditions and the FMLA” to remind employees about when employees are eligible for FMLA leave due to a mental health condition.  In some cases, workers’ compensation protections may also be triggered.

Employees spend a substantial amount of time at work during the year, whether physically in the workplace or remotely.  Employers, therefore, are in a unique position to recognize the current mental health struggles of employees and make improvement and support of mental well-being of employees a strategic priority.  Implementing policies and practices to support employees’ needs will not only be beneficial for legal risk management reasons, but it will also help to improve employee wellbeing, productivity and performance.