Lisa English Hinkle
The COVID-19 pandemic has intensified the impacts of mental and behavioral health conditions such as depression, anxiety and substance use disorders. While we’ve begun to move towards normalcy in the workplace, the global impacts of the pandemic continue to exacerbate previous issues and create new ones.
Here in Kentucky, we’re seeing this fact in distressing ways. For example, there have been more than 2,000 reported deaths this year due to overdoses, the rise of which is often linked to unaddressed mental and behavioral health issues. On the other hand, many people are also becoming more open about discussing mental health, and its associated challenges, with each other and with their employers. As an employer, it’s more important than ever to understand your role in addressing these conditions in the workplace and the practical steps you can take to support your employees.
Legal Accommodations
Many employers may not consider the definition of “disability” to include mental health issues. Narrow perceptions of disability can inhibit the confidence of employees to ask for accommodations, or they may be unaware of their ability to do so or of the procedure for obtaining accommodations. The Americans with Disabilities Act (ADA) requires employers of a certain size provide reasonable accommodations to qualifying individuals.
Under the ADA, a disability is any physical or mental impairment that substantially limits one or more major life activities. Not every employee with stress or anxiety will qualify for accommodation, but sufficiently severe mental health conditions will meet the threshold. Employers need to recognize an employee’s condition as a disability and o.er the associated support.
When granting accommodations in the workplace, an employer is allowed to ask for more information from the employee to make the best accommodation plan that is reasonably possible for that company. Specific pieces like notes from a doctor or other medical professional, functional limitations of the mental health condition and the demonstrated need for a reasonable accommodation can all be used in forming a plan to support your employee. This information should be confidential and kept separate from the employee’s personnel file.
Additionally, Kentucky recently passed a law to facilitate employers who assist employees with substance use disorder treatment, providing reduced risk of liability for hiring employees with such disorders.
Practical Steps
You as an employer can take practical steps to offer mental health support to your employees to create a positive and accommodating workplace environment. Employers can consider the following steps to achieve that goal:
• Employers should evaluate existing company policies to ensure they’re up to date with ADA regulations and recommendations and that those policies are accessible to all employees. Employee policies should explicitly include mental health conditions as a recognized condition for ADA accommodations.
• Consider adding training and programming to your company operations to educate employees and HR representatives on mental health resources. Your human resources department may also communicate to employees about available resources, mental health webinars and information about the common signs of anxiety, PTSD and depression. Such communications also encourage employees to be aware of these signs in their behavior and those around them.
• Make sure employees know what constitutes an ADA-recognized disability and the process for receiving accommodations in the workplace. Let them know they are supported, and direct those who may need support to company and community resources for assistance. Be aware of the language you and your employees use to discuss mental health to avoid further stigmatization.
As an employer, you have a legal responsibility to your employees to ensure they can work effectively in an environment that meets their disability needs. Consider implementing these processes and programming ideas or those of your own to keep our commonwealth working and healthy.
Lisa English Hinkle is an attorney specializing in health care law at McBrayer PLLC. She can be reached at lhinkle@mcbrayerfirm.com. Visit mcbrayerfirm.com for more on the legal issues surrounding health care.