Title I of the Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to employees with a mental or physical impairment that is negatively impacting their ability to perform their job.  Employers must engage in a good faith interactive process with employees who request accommodations, and this process must be supportive and open-minded. In addition, the employer must ensure that medical information – including the need for accommodation– is kept confidential. The ADA also prohibits employers from making disability-related inquiries unless they are job-related and consistent with business necessity. It can be very challenging to manage conversations with employees about mental health medical conditions in a compliant way given these varied legal requirements. But if employers promote mental wellness benefits and foster a supportive workplace environment, they can help employees in need and maintain compliance with legal requirements.

Employers can play a critical role in providing employees with access to mental health resources, either through medical plans, disability benefits, or standalone programs. 

Benefits: State and federal mental health parity laws require employer-sponsored health insurance coverage for mental health and substance abuse be no more restrictive than for other conditions. Program design with low or no out-of-pocket costs and telehealth options can increases access and usage.

Employee Assistance Programs (EAPs) provide employees with mental health resources including licensed therapists, free counseling sessions and provider referrals. EAPs are often under-utilized, so promoting through clear, frequent communications is important to gain value from the program. Employers can also offer mental wellness programs that provide coaching on healthy sleep habits, stress management, and meditation, among other areas. 

Time off and flexible scheduling

Time off and flexible scheduling can help reduce stress and provide employees with greater opportunity to access mental health services or attend to important caregiving needs during working hours.  Senior leaders should normalize disconnecting while out of the office by not calling in or replying to emails while on paid time off. Respecting the sanctity of time off helps employees truly recharge.

Workplace culture

Fostering an emotionally healthy work culture helps employees feel safe in reporting workplace behaviors or conditions that may be adversely affecting their mental health. When these issues are readily reported and addressed, employers are far more likely to avoid potential lawsuits for discrimination or harassment.  Employers should ensure that employees are able to share their concerns without fear of unlawful retaliation, and consider training HR personnel so they can handle complaints in an empathetic, supportive manner.

Compliance obligations 

In addition to the ADA, the federal Family and Medical Leave Act (FMLA), and state and local paid and unpaid leave laws entitle employees in certain circumstances to take job protected leave for their own mental health needs or to care for a family member with mental health needs. These laws have their own compliance requirements including the duty to provide proper notice to the employee, and limits on the types of medical certifications that can be required or inquiries that can be made.

Mental health issues in the workplace are challenging to handle but supporting mental and emotional wellness will strengthen employee engagement and productivity, help boost retention, and reduce risk of legal claims.

This article was originally published on 05/13/2022 at http://dmec.org/2022/05/13/common-sense-compliance-mental-health-conversations/