Mental Health at Work: From Self-Care Seminars to Employment Law

Pathways @Ellen Feldman

Ten years ago, Psychology Today warned that a “silent tsunami” of mental disorders in the workplace “could engulf organizations in [a] myriad of productivity and profitability problems as well as legal liabilities unless mental health is addressed as seriously as are marketing, compensation, and strategic plans.”[1] The silent tsunami is here, consisting of mental health issues, the need for accommodations, and potential liabilities.

If the statistics are right, nearly two-thirds of U.S. workers could be suffering from depression and/or anxiety: dealing with fear, panic, or intrusive thoughts; finding it hard to manage change and stress at work; having trouble concentrating and meeting deadlines; and, experiencing fatigue.[2]

And because the modern workplace is more team- and knowledge-based than ever, such individuals are working on cognitive tasks with peers and reporting to managers who might also be struggling. It is hard to tell how each individual is doing or to determine whose job it is to compensate.

In this radically changed context, time-pressed managers are getting a lot of advice on how to take care of others and themselves.

However, there is very little guidance on maneuvering this new landscape from a disability rights perspective. This means that management may not know about options to support staff, nor understand how to have conversations about potential accommodations or how disability and absence management programs work. It also means potential liabilities. What are the implications, especially for managers?

Some legal and regulatory context

In 1990, the U.S. Americans with Disabilities Act (ADA) became law. This civil rights protection act increased the protections of the 1964 Civil Rights Act by prohibiting discrimination against individuals with disabilities in all spheres of public life (employment, education, transportation, state and government services, telecommunications, and public and private spaces that were open to the public). The law was intended to allow the disabled to have the same rights and opportunities as other citizens. (The ADA defines a disability as “any physical or mental impairment that limits a major life activity.”)

To be protected under the ADA, individuals must have at least one of the following:

• A physical or mental impairment that prevents them from performing a major life activity
• A medical history of suffering from a physical or mental ailment
• The perception that the individual suffers from a physical or mental impairment

The ADA applies to private employers with more than 15 employees,[3] and requires employers to provide reasonable accommodations to employees with disabilities, which may include changes to the workspace, time off for appointments, more time to complete particular tasks, later starts, and exemptions from activities. It would not be illegal to part with an individual whose behavior is affecting the workplace — i.e., screaming at employees and creating an unsafe workplace.

Despite the law’s seemingly sweeping provisions on paper, however, it proved difficult to enforce in practice. For their part, U.S. courts tended to interpret the ADA’s definition of “disability” more and more narrowly for the first 20 years of the law’s history, until the act did not fulfill its purpose intended by Congress. The 2009 Americans with Disabilities Act Amendments Act (ADAAA) updated all the titles of the ADA to make it easier for individuals to pursue legal remedies.

A year after the ADA was amended, the Affordable Care Act (ACA) was passed, requiring most individual and small-employer healthcare plans to include mental health and substance abuse coverage. Such coverage could range from prevention (e.g., depression screening and behavioral assessments) to rehabilitation.[4] The ACA also prohibited any healthcare plan that did not impose a dollar limit on reimbursement for physical healthcare from imposing a limit on reimbursement for mental healthcare.[5]

The ADA and mental ailment

Even after the passage of the ADAAA and ACA, however, the ramifications in the workplace are still frequently unclear. It remains financially and emotionally costly for employees to bring a suit against their employers, and employees who do so could face reputational damage. In addition, civil litigants do not get any form of free legal representation, further suppressing lawsuits. No two disabilities are ever the same, so each case needs to be considered on its own merits and circumstances.

It is now particularly important for managers to understand the legal context in which they seek to support workers reporting more mental health issues and becoming more vocal about seeking accommodations.

Depression, one of the most common mental health conditions in the U.S., can be an instructive example. For individuals between 15 and 44, it is the leading cause of disability, according to the Anxiety and Depression Association of America. Median age of onset is 32.

There are many misconceptions about what depression is and how it affects people. Depression is a serious mental condition that can affect how a person functions in their daily life. Depression and anxiety can make it hard to regulate emotions, engage in self-care, think and concentrate, sleep and work. Many, however, do not consider depression to be a disability, meaning that people who suffer from it often face workplace discrimination. (For more information, see the Equal Employment Opportunity Commission’s guidance on depression, PTSD, and other mental health conditions.)

Clinical depression may be recognized as a disability under the ADA, but if one’s depression does not affect his or her ability to engage in major life activities (for example, sleep) or do the job, the employee may not be protected under the Act.

To be protected by the Act, the person with depression must prove that his or her condition affects his or her ability to engage in major life activities yet he or she is still able to perform the essential functions of his or her job, with or without reasonable accommodation. In addition, the employer must also be informed — an employee cannot file an ADA suit alleging discrimination otherwise. Human resources may need a doctor’s note.

Finally, alcohol use may not be protected under the ADA, but alcoholism can be if the employee is diagnosed, actively in rehab, or in treatment. Substance abuse and substance use disorders are more frequent in depressed and anxious individuals.

What can this mean for management?

Below we propose a few topics and questions to prompt reflection.

Recruiting: Candidates do not need to reveal medical conditions during the recruitment process or job interviews, nor can interviewers ask candidates to disclose any medical conditions. If such a question is asked and answered, and the person is not hired, the person may have a cause of action for pre-employment discrimination. Notably, if a disability is disclosed before or at the time of hiring, and the applicant is still hired, this fact may act against a person later trying to pursue a claim of disability discrimination. A recruiter or hiring manager can, however, give prospective employees appropriate opportunities to demonstrate core requirements of the work — such as presenting in public or having a group meeting with company employees to assess clarity, ease of interaction, and ability to deal with the stress of presenting. If the job requires the ability to deal with stress, managers can give prospective employees appropriate screening tests but would be well advised to check with their HR and legal counterparts. They should remember that the ADA considers personality tests that suggest a mental health diagnosis (such as those detailed in the DSM[6]) as medical exams.[7] Those are only allowed after a job offer has already been extended.[8]

If you are a recruiter or interviewer: What are your other options to ensure fit? How explicit are you in interviews about the demands of the job? What if being honest risks scaring off a potentially attractive candidate? The better the job market, the greater the promises. How comfortable are you sharing your challenges to open up a conversation with your candidates?

Managing teams: Mental health accommodations need to be kept confidential. Individuals are not required to tell their teams or managers about potential accommodations. However, an individual can choose to be open about preferences: “I have a medical diagnosis that will limit how I work for [amount of time].” “When my noise-canceling headphones are on, I absolutely cannot be disturbed,” or, “I will be unavailable every Tuesday from 3 p.m. to 4 p.m.”). Often employees and managers are very worried about revealing that they are struggling or being honest about what they need for fear of reprisal. Creating a team culture that reduces such fears might make it possible to address issues earlier.

As colleague or team leader… How should you proceed if an individual reveals these imperatives? What if a deadline is imminent or it is a team project? In the absence of information, do you find yourself diagnosing others and making assumptions about their abilities to perform at work? To what extent do you help your peers and create a supportive environment to enable them to obtain what they need succeed?

If you supervise… How well do you match employees to positions? How do you review this fit regularly, especially when employees go through inflection points such as divorces, loss of loved ones, or promotions? Do you monitor how staff are evolving to help them consider reassignments within the same organization?

If you manage teams and firms… Should we rebuild workplaces that provide accommodations by default? If we aim to do that, how do you manage teams, define and ensure equity — for example, how might you balance conflicting accommodations for two different employees who need to collaborate? How do you reward both those who give and receive help when needed in the workplace? And how do you also guarantee safety?

Rethinking what accept as corporate culture: We groom and hire leaders for their dispositions — driven, relentless, dedicated, ruthless, bred to win. Like athletes who we feel represent us, we are happy when they win, when they build companies and products we like, and feather our 401Ks (for those of us lucky enough to have them). However, some leaders in their drive might impose a significant cost on their organizations.

If you are a board member… what role might you be able to play in creating a mentally healthy environment for this company and for its leaders? How might you be able to have your voice heard and considered by senior management on health topics in the company?

If you are an executive coach… How can you help your clients become more aware of the emotional damage they might cause and their risks?

Good advice from Memphis

In 2019, a car dealership settled a case brought on by an employee with anxiety, depression, and panic attacks. She had claimed that her employer had violated the ADA by refusing to provide a medical leave of absence as accommodation and then firing her because of her disability.

About the ruling, the EEOC district director in charge stated that “Employers should ascertain whether their employment handbooks are updated so that supervisors, managers, and employees know what the ADA requires.” This advice seems urgent today.

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Thank you for your interest and any feedback and corrections you might have. Please note that I am neither a clinician nor a lawyer. If you are experiencing mental distress or need legal advice, please reach out to professionals.

Thank you to Bess Masterson at Kilgore & Kilgore Pllc for legal insight into the ADA and discrimination law, and for being an advocate for better workplaces. And as always, thank you to my colleagues John Masko and Mel Martin for their thought partnership and always asking the right questions.

Resources:

• How to Interview Without Violating the ADA (FindLaw)
• ADA: Disabilities & Your Rights as an Employee (FindLaw)
• The Difference Between Workers’ Comp and Disability Benefits (FindLaw)
• Suing for Emotional Distress at Work (FindLaw)
• HIPAA and mental health diagnoses (U.S.Health and Human Services)
• Preferred terms for mental and behavioral health (U.S. CDC)

[1] “The Silent Tsunami: Mental Health in the Workplace,” Psychology Today, September 26, 2012, https://www.psychologytoday.com/blog/wired-success/201209/the-silent-tsunami-mental-health-in-the-workplace, accessed June 16, 2017.

[2] For helpful guides and access to therapists, consider the resources of the Anxiety and Depression Association of America (ADAA).

[3] About 18% of U.S. workers work for companies with 1- 19 employees. This represents about 5 million small businesses.

[4] U.S. Department of Health and Human Services, “Health Insurance and Mental Health Services,” https://www.mentalhealth.gov/get-help/health-insurance/, accessed March 2017.

[5] United States Department of Labor, “Health Plans & Benefits: Mental Health Benefits,” https://www.dol.gov/general/topic/health-plans/mental, accessed March 2017.

[6] Christopher J. Kuczynski, “ADA: Disability-Related Inquiries and Medical Examinations,” U.S. Equal Opportunity Employment Commission (informal discussion letter), May 4, 2001, modified April 27, 2007, https://www.eeoc.gov/eeoc/foia/letters/2001/ada_inquiries_examinations_2.html, accessed May 2017.

[7] U.S. Office of Personnel Management, “Frequently Asked Questions,” https://www.opm.gov/FAQs/QA.aspx?fid=a6da6c2e-e1cb-4841-b72d-53eb4adf1ab1&pid=e9063ead-07d0-472e-ae96-48b48b661baa, accessed May 2017.

[8] U.S. Office of Personnel Management, “Frequently Asked Questions,” https://www.opm.gov/FAQs/QA.aspx?fid=a6da6c2e-e1cb-4841-b72d-53eb4adf1ab1&pid=e9063ead-07d0-472e-ae96-48b48b661baa, accessed May 2017.