Mental Health Taking Center Stage With Wellness@Work Programs

Author: Helena Oroz, Brightmine Legal Editor

October 20, 2022

Employee wellness is creating a lot of buzz in HR and People Teams circles these days, and a big part of the wellness conversation surrounds employee mental health.

Recent events and experiences, including the COVID-19 pandemic, have significantly increased mental health challenges for many employees. Employers are increasingly taking note and adopting strategies to address mental health at work as part of larger programs focused on employee wellness.

Some of these strategies include:

• Employee assistance programs;
• Health education classes;
• Better health insurance;
• Company policies and work environments that promote wellbeing; and
• Increasing access to mental health resources.

Yoga classes and meditation apps may have their place in the wellness space, and mental wellness is a critical component of overall employee wellness. But it's important to recognize that mental health and mental illness are not the same.

When a mental illness is at issue, people management must converge with legal compliance.

The FMLA and Mental Health Conditions

Most employers covered by the federal Family and Medical Leave Act (FMLA) understand their obligation to provide an eligible employee with unpaid, job-protected leave for, among other things, their own serious health condition or to care for a family member with a serious health condition. What employers might be missing, though, is how mental health conditions fit into the FMLA landscape.

Mental health issues haven't always been front and center for employers like they are now. The US Department of Labor recently jumped on that trend to remind employers that the FMLA covers mental health conditions, too, including in the following situations:

• When an employee is unable to work due to their own mental health condition (e.g., an employee with severe anxiety is sometimes unable to work due to their condition and has monthly doctor's appointments).
• When an employee needs leave to care for a family member with a mental health condition, which includes providing psychological comfort and reassurance (e.g., an employee travels to the inpatient facility where their minor child has completed an inpatient drug rehabilitation treatment program, to attend an after-care meeting).
• When an employee needs leave to care for an adult child (18 years of age or older) with a mental health condition, if the adult child is incapable of self-care because of a physical or mental disability as defined by the ADA (e.g., an employee cares for their 24-year-old child who was recently released from an inpatient mental health facility, is incapacitated, and needs help with daily activities).
• When an employee needs leave to care for a covered servicemember with a serious injury or illness (different definition than serious health condition), including mental health conditions that manifest during active duty or that develop after the individual became a veteran, such as PTSD, depression, or traumatic brain injury (e.g., an employee transports their spouse to and from outpatient treatment for PTSD that manifested three years after being honorably discharged from the military).

Taking FMLA leave to deal with a mental health condition may be stressful in and of itself, so it's important for employers to correctly administer the leave, starting with recognizing the circumstances under which FMLA leave may be appropriate. And remember, when FMLA leave runs out, the ADA may come in to play.

The ADA and Mental Health Conditions

Mental health conditions can be disabilities under the ADA if they substantially limit (as compared to most people in the general population) one or more major life activities (major activities like concentrating and thinking, and major bodily functions, like neurological and brain functions).

According to the Equal Employment Opportunity Commission, certain mental health disorders like major depressive disorder, bipolar disorder, post-traumatic stress disorder and schizophrenia will generally be considered disabilities under the ADA because these disorders substantially limit brain function. Other mental health conditions can be disabilities, too. But not every employee with a mental impairment will need an accommodation to do their job.

If an employee or applicant does need an accommodation due to a mental health condition that is a disability, the ADA requires the employer to accommodate them (absent undue hardship), just as the employer would accommodate an employee with a physical disability.

Remember: the ADA does not require an employee or applicant to use any particular "magic words," to mention the ADA, or to do anything other than communicate a request for a change at work for a reason related to a medical condition - which can be a mental health condition.

That request for a change generally triggers the interactive process, where the employer and employee explore accommodation options specific to that individual's job and job-related limitations. That process doesn't change when a mental health condition, versus a physical condition, is involved. Just follow the same steps and, as David Fram of the National Employment Law Institute notes succinctly, start with five simple words by asking the employee: "How can I help you?"

Final Thoughts

Wellness programs are a targeted way to address mental health at work. But effectively managing employee mental health conditions requires more than a great wellness program, even one with a strong focus on mental health.

Employers need to have a solid understanding of their legal compliance obligations (including under applicable state and local laws) and how to effectively, and empathetically, act on those obligations to successfully manage mental health conditions in the workplace.