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Mental health at work: The laws and best practices


Discussing mental health at work can be a sensitive topic. And it may be something that’s never revealed to management until a request for time away.

Mental illness is a prevalent and serious issue – one that business leaders and HR professionals should be prepared to handle appropriately. Approximately one in five Americans experiences a mental illness in a given year, according to the National Institute of Mental Health.

How should you handle a request for time off due to mental illness? What are the legal responsibilities for accommodating someone with mental health-related issues?

Here’s what managers need to know to properly meet employees’ needs while complying with all federal regulations.

Has the employee been diagnosed?

A request for time off may be the first time you learn that your employee is struggling with a mental illness. Inquire about their situation and reassure them that you will work with them to meet their needs.

Once an employee makes it known that they may require support, an employer must take the next steps to determine what accommodations (if any) are required.

Establish the challenges they are dealing with and ask to hear how any mental health difficulties may be affecting their ability to finish work tasks and enjoy their career.

If an employee requests to take paid time off to handle a mental health issue, it may be in your best interest to grant it. Taking earned leave doesn’t require a medical diagnosis nor dipping into the days allowed under the Family Medical Leave Act (FMLA), if it is not a serious health condition.

But what if the employee is asking for time off due to a chronic or serious diagnosed bout of mental health complications? It’s wise to look at what kind of reasonable accommodations can be implemented to assist the employee to meet the essential function of their job.

What do you do if an employee has a diagnosed mental illness?

Reasonable accommodations may include time off, but they could also be adjustments to the work day, a reduction in the noise level of the office or a need to schedule a doctor’s visit during the work week.

Additionally, the employee’s physician may have suggestions on what accommodations are necessary and can be a valuable part of the solution for long-term personal and career success. Their contribution to the interactive process may be essential to keep the employee healthy and happy at work.

Encourage the employee to go to their next appointment with a formal job description. This may help the diagnosing physician frame solutions that work for the employee’s specific occupation.

The employee and the HR manager should engage in the interactive process to focus on and implement an accommodation plan and review future requests for work leave.

What does the Americans with Disabilities Act require?

The Americans with Disabilities Act (ADA) prohibits discrimination in the workplace due to disabilities or illness.

It defines someone as having a disability if their impairment limits a major life activity or if there is a record of impairment.

A reasonable accommodation, including requests for time off, doesn’t have to be expensive for a company. Something as simple as restructuring the work day, moving start times, chunking up breaks or providing flexible work arrangements could be all that is needed. These smaller accommodations may lead to fewer requests for lengthy leaves.

Employers can also look at additional, optional ways to create a more peaceful and supportive work environment for workers with mental health disabilities. Referring them to the employee assistance plan (EAP) and free or low-cost resources through the Job Accommodation Network (JAN) can make a big difference in workplace satisfaction and management of mental health symptoms.

What if a worker can’t regularly meet the requirements of their job, even when given reasonable accommodations and an allowable and reasonable amount of leave under the ADA? Proper steps should be followed for evaluating whether the accommodation request is an undue hardship to the company.

When does leave qualify for the Family Medical Leave Act (FMLA)?

When the accommodation that a worker seeks includes time away from the office, the topic of FMLA may come into play. How can a manager or HR leader know what leave qualifies and what doesn’t?

While the topic is a complicated one that may require the advice of a legal or HR consultant, here are the quick facts:

  • One or two days away, from time to time, and requested in advance, may be a good use for unused flex time, sick leave or even banked vacations days (and handled in the same manner as common illnesses or injury).
  • If the absence is greater than three days and if certain criteria are met, qualified FMLA may be considered.
  • Not all companies have to offer FMLA leave. Those with fewer than 50 employees within a 75-mile radius aren’t bound by FMLA laws.
  • The employee must have worked 1,250 hours in the previous 12 months to qualify for leave.
  • The leave is usually unpaid, although certain states may cover time away with partial disability plans or additional private insurance compensation.
  • Leave may be taken in chunks, a few days at a time or all at once – totaling no more than 12 weeks off in a one-year time period.
  • An employee will normally be restored back to the same or an equivalent position when the employee returns from family and medical leave. An employee who does not return to work at the end of an authorized leave should create an opportunity for the employer and employee to engage in the interactive process to see if any reasonable accommodation could return the employee to work.
  • In the event an employee’s position with the company is affected by a decision or event not related to the employee’s leave of absence (e.g., job elimination due to a reduction in force), the employee will be affected to the same extent as if they were not on leave. Certain “key employees,” as defined under the FMLA, may not be eligible to be restored to the same or an equivalent position after leave if doing so would cause substantial and grievous economic injury to the operations of the assigned company.

How can you keep tabs on leave?

Are your employees taking time off work for mental health more often than usual? Has there been a pattern of unfinished work or an increase in requests that disrupt the workplace or productivity?

It may be time to discuss revising the accommodation plan with your employees.

Schedule a time to go over their challenges, their leave options and what new solutions (if any) can be sought for reasonable accommodation. Be sure to include the workers’ health care provider in the plan, if necessary, by having employees take concerns to their doctor at their next visit.

Always document meetings and accommodations you’ve tried and track the amount of time employees have taken away from work.

Often the smallest tweaks to a workspace, schedule or duties are enough to put your employee on a path to success. Regular check-ins and performance reports can let you know if the changes are working.

Finally, if you find that your top-tiered talent is requesting more time away due to stressful work obligations, a formal sabbatical program may be a perk to consider offering.

The laws governing employment can be cumbersome and overwhelming. Don’t leave your business exposed to undue risk. Educate yourself on the basics by downloading our complimentary e-book: Employment Law: Are you putting your business at risk?