Keys to FMLA, ADA Compliance for Mental Health Are Communication, Flexibility

 

By Robert S. Teachout, SHRM-SCP March 15, 2019
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​A mental health impairment is defined by the National Alliance on Mental Illness as a medical condition that disrupts a person's thinking, feeling, mood, ability to relate to others and daily functioning. Such impairments often result in a diminished capacity to cope with the ordinary demands of life.

That means employers must navigate both the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) to help employees manage their mental health.

Debunking Misconceptions

One of the first steps an employer must take is to let go of misconceptions about mental illness. According to the Centers for Disease Control and Prevention, more than 50 percent of the population will be diagnosed with a mental health condition during their lifetime. And 1 out of every 5 American adults will experience mental illness in a given year, while 1 in 25 live with a serious mental condition such as major depression, schizophrenia or bipolar disorder. So the odds are that there are already employees with mental health conditions working in any organization.

When an employee who has not exhibited any telling behavior informs the employer that he or she needs an accommodation for a mental health condition, it can make some employers really nervous, said Melanie Whetzel, lead consultant on the Cognitive & Neurological Team at the Job Accommodation Network (JAN). JAN is a leading source of expert guidance on workplace accommodations and disability employment issues that is funded by a contract with the Office of Disability Employment Policy within the U.S. Department of Labor.

For example, "there's just that misconception that people with PTSD [post-traumatic stress disorder] are going to be violent [and that] people with bipolar [disorder] are just up and down and don't know what they're doing. And that is really not the case," she said.

When somebody's mental health impairment is noticeable, there may be some disruption, she said. But a lot of people have mental health impairments that the employer isn't aware of or doesn't recognize because the employees are already receiving treatment. "Some people take medication; some people have therapy; or both. The important thing is to look at it on a case-by-case basis, because there are lots of differences within the same diagnosis—differences in severity or how it impacts the person."

Tamara Rasberry, SHRM-CP, an HR manager for a national nonprofit organization and mental health awareness advocate, agrees that it's important for employers to understand how different types of mental health disorders can present at different levels.

"Some people have depression, but at a low-grade level; some people have it at a major level. Some people have anxiety, but they can deal with it fairly easily, whereas other people have anxiety where they sometimes can't come out of the house," Rasberry explained. "There's not one way to be anxious, there's not one way to be depressed, there's not one way to have bipolar disorder."

Complying and Communicating

Mental health conditions can trigger compliance requirements under both the FMLA and the ADA.

An anxiety attack, PTSD episode, major depression or other mental health event may qualify as a serious health condition under the FMLA. Likewise, an employee who has a mental health condition that substantially limits one or more of his or her major life activities, who has a record of such an impairment, or who is regarded as having an impairment is likely to be covered by the ADA.

A key to complying with these laws with regard to mental health conditions is communication, both to determine the qualification and need for benefits and to provide an appropriate reasonable accommodation.

Jeff Nowak, a shareholder in Littler's Chicago office whose practice focuses on the FMLA and the ADA, said an employer has three responsibilities:

  1. Recognize situations in which an employee's behavior is creating difficulties or concerns in the workplace. Identify those situations and be ready to address them.
  2. Engage in a discussion with the employee to identify assistance that will help him or her perform the job and to manage any kind of mental health conditions that he or she is dealing with, without actually raising the term "mental health."
  3. Be consistent in the approach to these conversations and in the way that discipline is applied.

 Nowak suggests having a two-part conversation with the employee. In the first half of the conversation, the focus should be on performance. The employer needs to share what has been observed from the employee and explain the employer's expectations. "Be specific with the employee about how he or she has fallen short of those expectations and express concern about how the work product does not meet the employer's expectations," he said. "Then if you need to issue discipline at that point, so be it."

Then the conversation should transition to the second part, which is really the interactive process under the ADA. Nowak advises managers to ask if there is anything they can do to help the employee improve their performance. "The five words 'How can I help you?' can go a long way to initiating that conversation as to what the employee might need to overcome mental health issues that they're dealing with and that are affecting their job performance," he said.

[SHRM members-only form: ADA: Reasonable Accommodation Checklist]

Employers should be prepared for a potentially emotional reaction—whether it's surprise, anger, denial or defensiveness—from the employee, Nowak warned, but should give the employee an opportunity to talk.

One of the reasons these conversations may get derailed is if managers fear engaging an individual who is dealing with mental health issues, according to Jon K. Drogheo, who specializes in recruitment for the mental and behavioral health field. "They're not sure how to respond—what to do, where to take it and what to say." He encouraged managers to remember that the individual may be afraid and not likely to admit to having a problem.

Managers can ask, without getting into detail, if everything is going OK and whether the employee is having any challenges at work in order to gain his or her confidence and trust. Then the manager has a good opportunity to segue into sharing available resources with the employee, like an employee assistance program. This is a way to show the employee that the employer cares about his or her performance and about him or her as a person, Drogheo said. "We want to be legally compliant, but we also want to be human."

Providing Accommodations

Job accommodations can help employees with mental health challenges be successful at work. Although employers may fear that accommodations will be costly, that often is not the case.

Some of the common accommodations that tend to work well require flexibility in the employee's schedule, Whetzel said.

For example, an employee who can't get to work at an early time due to medications can be on a later schedule. Likewise, if an employee can work better when the office is quieter, he or she can come in and leave early in order to put in hours when nobody's there. Or an employee may be allowed to telework when he or she may not be up to being around a lot of people. A flexible schedule also helps so an employee can get to medical and counseling appointments.

"We frequently recommend temporary or trial accommodations," Whetzel said. "Try it and see if something works, and if it doesn't work, then you're not tied to it forever."

There are two points where an employer should draw the line on accommodating an employee with a mental health issue, Nowak said: when there is a genuine concern about the safety of the employee or co-workers and when the employee's attendance has become so sporadic that the employer cannot rely on the individual anymore. "Every employer has a different threshold for how much they're going to tolerate in that area," he said.

Creating an Inclusive Environment

The stigma often attached to mental health may make employees ashamed to talk about the fact they're dealing with these issues and may keep them from reaching out for help. Employers can help by creating an inclusive work culture where people feel comfortable going to their HR representative or their supervisor about any workplace issue. "If employees believe they can go to their employer about issues in general, it would then make it easier for them to come if they're dealing with some type of a mental health issue," Rasberry said.

One of the ways an employer can demonstrate support for employees with mental health impairments is through the benefits package it offers. "Is mental health a component?" Rasberry asked. "Can people use [health benefits] to see a therapist without having to pay extra? Don't make it harder for a person to get help when they're dealing with an issue already."

Drogheo advocates for providing mental health first-aid training for the organization, noting that a lot of the training is free and will help to ease the stigma of mental illness. "A lot of times managers and co-workers don't know how to respond to mental illness, and training helps eliminate some of that fear," he said. "I look at it as if you were getting CPR-trained."

Perhaps most important, Rasberry said, is being open about mental health and not afraid to have needed conversations. She shares her own diagnosis with major depressive disorder to help combat the mental health stigma. "It definitely impacts me [from] day to day, including my work life. Part of my being an advocate for mental health awareness has to be me not being afraid to talk about my own situation."

Nowak agrees, adding that employers that have had success in helping employees to manage mental health challenges are those whose leaders have invited the conversation. When someone at the top admits to dealing with mental health issues, employees know it is OK to have those discussions and the organization is committed to helping the employees succeed.

XpertHR's 8 Tips for Handling Mental Health Issues and ADA/FMLA Compliance report and other mental health in the workplace guidance provide more tips about addressing employees' mental health challenges and remaining FMLA- and ADA-compliant.

Robert S. Teachout, SHRM-SCP, is an XpertHR legal editor in Washington, D.C. 

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