Lawfully Handling Employee Mental Health Issues

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By Kathleen J. Jennings (kjj@wimlaw.com)

Thanks to the effects of a worldwide pandemic and revelations by high profile athletes, the issue of mental health is being openly discussed. Such discussions may even happen in your workplace. So how do you deal with employees who reveal that they are struggling with mental health issues, either their own or those of a close family member?

As a starting point, employers that are covered by the Americans WIth Disabilities Act (ADA) cannot discriminate against employees who suffer from mental health conditions that would be considered “disabilities.” Morever, the ADA prohibits employment discrimination against a person, whether or not he or she has a disability, because of his or her known relationship or association with a person with a known disability.

The ADA also protects employees from harassment on the basis of their mental health disabilities. Additionally, the ADA imposes a duty on covered employers to determine whether they can provide reasonable accommodations to disabled employees. An employer is not required to provide an accommodation that would impose an undue hardship.

These are complicated issues, and the EEOC has provided detailed (albeit not up to date–it was issued in 1997) Enforcement Guidance on the Americans With Disabilities Act and Psychiatric Disabilities. More recently, in 2016, the EEOC issued a technical assistance document targeted toward employees entitled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.” This is something your employees may review if they feel like they are not being treated lawfully, so it is worth the time for employers to review it as well.

Every situation is different, so an employer should deal with employees with mental health disabilities on a case by case basis and with the assistance of qualified counsel. However, the following are some general guidelines:

  • If an employee reveals that he or she has been diagnosed with a mental illness, that information must be kept confidential.
  • There are very limited circumstances under which an employer can ask an employee if he or she is mentally ill. Before making such an inquiry, consult with counsel.
  • It is inappropriate for anyone to refer to another employee as “crazy,” “nutcase,” “cuckoo for coco puffs,” “insane,” or other types of derogatory words and phrases. If the use of such terms is considered to be severe or pervasive, the employer could be liable for harassment. Your harassment prevention training should cover this issue.
  • Some examples of possible accommodations for employees with mental health disabilities include altered break and work schedules (e.g., scheduling work around therapy appointments), quiet office space or devices that create a quiet work environment, changes in supervisory methods (e.g., written instructions from a supervisor who usually does not provide them), specific shift assignments, and permission to work from home.
  • The Family and Medical Leave Act may come into play, if the employer and employee are covered by it.

Most of all, a little compassion goes a long way.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

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