Ask an Expert: Mental Health

Can we require an employee to get mental health treatment?

By Kimberly McNeil August 26, 2021
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Ask an Expert: Mental Health

​Employees have been under a lot of stress throughout the COVID-19 pandemic, which means employers need to watch for warning signs of burnout and other mental health issues while still maintaining performance expectations. 

If there are significant changes in an employee’s appearance, attitude or work ethic, or if disruptive behavior emerges, HR should document concerns and then talk with the employee to determine if there are ways the organization can help.

During the discussion, HR should show empathy and inform the employee about available options, such as an employee assistance program that provides access to mental health counseling. 

It’s important to note that HR professionals aren’t medical professionals and shouldn’t try to diagnose the employee’s condition. Doing so could invite lawsuits because the Americans with Disabilities Act (ADA) prohibits discrimination based on the “perception” of a disability.

When employees share that they are or a family member is experiencing a physical or mental health issue, job-protected leave, such as that available under the Family and Medical Leave Act, may apply. In addition, the ADA provides protections for workers whose physical or mental impairment substantially limits one or more “major life activities,” including thinking, communicating or working. If an employee is having difficulties with any of these activities, the employer may be required to engage in the ADA interactive process by asking how it can help the employee perform the essential functions of the job.

Employees are entitled under the ADA to reasonable accommodations that don’t present an undue hardship to the employer. Such accommodations may include time off for treatment, a reduced work schedule or telework arrangements.

While an employer can’t force an employee to seek mental health treatment, it can require a fitness-for-duty examination when the person’s behavior creates concern for the health and safety of that individual or other employees. An exam might also be warranted when a manager is concerned that an employee’s work performance could be limited by a medical condition.

The ADA allows employers to require such exams to confirm that an employee can perform essential job functions with or without reasonable accommodations. To help the medical professional conducting the exam, HR should provide managers’ written observations of any unusual behavior, along with a comprehensive job description that accurately represents the essential functions and physical demands of the job.

Helping employees maintain mental well-being not only benefits the employer, but also ensures a safe and healthy work environment for all employees.  

Kimberly McNeil, SHRM-SCP, is an HR Knowledge Advisor for SHRM.

Image by iStock.

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