2019 Wrap Up: Tis the season to be jolly…and anxious…and depressed

The last decade has brought with it a significant increase in the number of claims stemming from allegations of discrimination or retaliation as a result of mental health conditions. While we often see an increase in anxiety and depression around the holidays, the mental health of employees is an area of the law that we will continue to see significant increase in as well as an evolution of case law surrounding mental health in the workplace, over the course of the next decade.

In 2016, the EEOC resolved almost 5,000 mental-health related charges of discrimination and obtained approximately $20 million in settlement for individuals with mental health conditions who were denied employment or reasonable accommodations.

While in the past mental health has been the disability that is quietly whispered about and not always shared by employees, the last decade has brought mental health to the forefront. Employers must be mindful that mental health conditions can create a protected status under federal law (under the Americans with Disabilities Act), employees may have the right to paid or unpaid leave under state or federal law, and from an operational sense, improving employee mental health is just good for business.

Organizations need to re-think how they respond to (and in many cases contribute to) mental health issues, while simultaneously complying with the law. The good news is studies show that this the return on investment in focusing on mental health at work is worth it. While planning how to deal with mental health in the workplace in 2020 and beyond, there are some legal employment matters decision-makers should keep at top of mind:

1. It’s a disability. Just like a back condition, a pregnancy, or diabetes, anxiety, depression, PTSD, and other mental health conditions most likely will qualify as a disability under state and federal anti-discrimination laws. Under federal law, employers with 15 or more employees will be subject to the Americans with Disabilities Act (ADA), which will provide employee protection against discrimination or retaliation.
2. Leave may be necessary. In some situations, protected leave may be necessary to manage the condition. Employers should be aware of what their obligations are under the Family and Medical Leave Act and similar state statutes that provide protected leave for employees to care for their own conditions or the conditions of family members. Often times these leaves may be intermittent in nature and accordingly open dialogue with the employee is necessary to manage the leave.
3. Is it work related? If the stress or anxiety or other condition is as a result of work, there is a chance that workers’ compensation may come into play.
4. Are there OSHA Reporting Requirements? Is the mental illness one which must be reported under the Occupational Safety and Health Act? Did the employee voluntarily provide the employer with an opinion from a licensed health care professional stating that the mental illness is work related (29 CFR § 1904.5(b)(2)(ix))? If so, you must keep the employee’s name private and keep a separate confidential list of case numbers and names for privacy concerns.

Navigating the effects of mental health conditions in the workplace is tough, but Tawny Alvarez or another member of Verrill’s Employment & Labor Group are always here to help traverse these difficult issues with clients.