The legal and strategic imperative to promote mental wellness at work: a roadmap for employers

Every now and then I read something that is truly inspiring – today was one of those days. Brad Feld, Colorado venture capitalist, candidly discussed his depression in an interview with the Denver Business Journal.here Feld’s first experience with depression was in his twenties. “I was afraid to talk to anyone other than my psychiatrist about it. I was ashamed that I was even seeing a psychiatrist. I was afraid people wouldn’t take me seriously, or would stop respecting me, if I talked about how bad I was feeling.”

Over time, Feld learned that talking about his depression is central to managing it. When he felt it returning in 2012, “I was open about it this time as it was happening and throughout the process. I knew at this point how to handle it and that it would pass.”

Feld’s insights are important, particularly when viewed in the context of compliance with the Americans with Disabilities Act (ADA), and the enormous costs to employers of undiagnosed and untreated mental health disorders.

Employers have a duty to accommodate mental health impairments under the ADA.  Yet, only 15% train their managers to recognize mental health problems and help employees obtain treatment.  This training deficit is a root cause of liability and costs employers billions every year.

One in eight working-age adults struggles with depression; one in four has a mental health disorder. Depression is treatable: nearly 80% of those who obtain appropriate diagnosis, treatment, and monitoring fully recover from it. More broadly, approximately 57.7 million Americans, experience a mental health disorder each year, according to the National Alliance on Mental Illness.

The business case for early detection, diagnosis and treatment is compelling: depression costs employers $44 billion annually in lost work time, consisting of low productivity, absenteeism, turnover, and disability claims. Short-term disability claims based on mental illness are growing by 10% annually.

Jury verdicts in mental impairment ADA cases can be enormous. A Wisconsin jury recently awarded $2 million to a teacher with seasonal affective disorder who was terminated after requesting to work in a room with windows; a room was available but the school district denied her request. In a disability harassment case, the jury awarded $950,000 to a window cashier for the U.S. Postal Service who was teased daily about being “crazy” for seeing a psychiatrist and taking medication for anxiety and depression. The court noted, “The purpose of protecting those who are regarded as disabled from discrimination is to prohibit employers from relying on ‘stereotypic assumptions not truly indicative of individual ability.’”

Managers are often unaware of their duty to accommodate mental impairments, or how to engage in the interactive process. This training and education deficit is usually the root cause of liability. For example, a state court administrator’s office was recently held liable for bad faith failure to engage in the interactive process. The plaintiff, a strong performer with anxiety disorder, requested a slight modification of her job duties as an accommodation and was fired three weeks later without receiving a response. In a November 2014 case, the court overturned an employer’s denial of a budget analyst’s request to work a flexible schedule as an accommodation for her depression. The court noted that the ADA lists as potential reasonable accommodations “job restructuring” and “part-time or modified work schedules,” and that she “met every single work deadline . . . by working such a flexible schedule.”

Like Feld in his twenties, most employees are reluctant to disclose a mental health issue at work due to fears of job loss, being treated differently, loss of confidentiality, and shame. They therefore do not seek or receive the help they need and are entitled to. For these reasons, less than a third of adults with a diagnosable mental disorder receive treatment in a given year; and, four out of five people with treatable mental illness do not receive effective treatment.

Clearly, it is in all parties’ best interest to have a mentally healthy workforce. A roadmap for employers follows.

A ROADMAP FOR EMPLOYERS

Executive Briefing for Leaders

Leaders of the organization need to be educated on the legal landscape, the link between a mentally healthy workforce and productivity, the truth about mental impairments and effectiveness of treatment (versus myths, stereotypes, and fears), and why a proactive approach is the best strategy for addressing mental health. Leaders should be encouraged to develop and implement a campaign to assure everyone in the organization appropriately and legally addresses mental health issues. As part of this campaign, leaders can:

  • Provide education and training as outlined below
  • Assure that healthcare and Employee Assistance Program (EAP) vendors are including depression screening in all health screening given to employees
  • Require that when mental health issues are identified, highly qualified specialists are deployed to assure appropriate diagnosis and treatment

Education and Training for Managers

A. Through simple actions, managers can:

  • Reduce the stigma of depression
  • Assure employees obtain early detection, diagnosis, and treatment
  • Reduce the business costs of lost work, low productivity, turnover, and disability claims
  • Improve the lives of employees and their loved ones
  • Improve coworker morale
  • Mitigate legal risk under the ADA

B. Reduce the stigma of mental health in the organization by discussing it in meetings:

  • Inform employees that mental health issues are common and just like any other illness and treatment is protected under the ADA
  • Stress that seeking help is a sign of strength, not weakness
    Inform employees that early recognition, diagnosis and treatment are important; if untreated it can negatively affect job performance
  • Reassure employees confidentiality will be maintained and that medical records are separate from official personnel files under the ADA
  • Inform employees of the organization’s commitment to reasonably accommodate mental health issues in compliance with the ADA just like any other medical condition

C. Recognize signs of potential mental health issues:

What Depression Can Feel Like:
Slowed thoughts and difficulty thinking
Lack of concentration
Forgetfulness and poor memory
Trouble making decisions
Low interest and motivation
Social isolation
Low self-esteem
Sadness
Anger
Sleep disturbance
Hopelessness

What Depression Can Look Like:
Poor quality work
Procrastination, accidents on the job
Indecisiveness, slowed productivity
Presenteeism – “just showing up”
Lateness
Missed deadlines
Absenteeism
Social withdrawal at work
Decline in relationships with co-workers, boss, clients
Low morale

D. How to talk about mental health issues at work:

My experience as a judge and mediator is that most managers shy away from discussing mental health issues at work. This is readily understandable — they don’t know what to say and fear they will run afoul of the law. As the front line, however, they need education and training to allay these fears, help them manage ADA compliance, and maintain a mentally healthy workforce.

DO:

 Say, “You don’t seem like yourself. Do you want to talk about it?”
 Say, “It’s always okay to ask for help.”
 Say, “How can I help you do your job?”
 Support employees when they seek assistance
 Assure employee all medical information is confidential
 Reach out to HR and EAP

DON’T:

 Say, “You seem depressed”
 Say, “How is your health?”
 Ask the employee, coworkers, or family members if the employee has a disability.
 Ask, “What medications are you taking?”
 Say, “Get your act together”
 Act on fears and stereotypes
 Breach confidentiality, even if the employee voluntarily discloses their condition to you

E. What is the interactive process?

No magic words trigger the employer’s duty to accommodate a mental health impairment. For example, if an employee needs time off from work to attend therapy appointments, the manager should understand that the ADA’s protections have been triggered.

The interactive process (in which Human Resources is always a participant) should be a focused, problem-solving discussion of how the impairment limits the employee, and what specific accommodations will help him or her perform the essential functions of the position.

Reasonable accommodations can include time off for treatment or therapy, modifications of the work environment (quiet work space), flexible work arrangements, and modifications to the job that would not impose an undue burden on the organization. A job function is essential when “the reason the position exists is to perform that function.” Several other factors also define essential functions including the job description, the employer’s judgment, the current work experience of incumbants, and the consequence of the employee not performing the function. It is not unusual to try several different reasonable accommodations before the right one is determined. Moreover, as the employee improves, the accommodations needed will change over time.

Brad Feld serves as an inspiration for leaders to take a proactive approach to mental health in the workplace. When leaders take the initiative, they can reduce business costs, achieve ADA compliance objectives, and change lives.

If you think this post would be helpful to an organization you know, please pass it on.

Sources:

Brad Feld Q & A Bringing Depression Out of the Shadows, Denver Business Journal, March 22, 2015, reprinted on FeldThoughts Aprl 8, 2015.
Lerner, D, Adler, D, Chang, H. Berndt, E, Irish, J, Lapitsky, L, Hood, M, Reed, J, and Rogers, W., The Clinical and Occupational Correlates of Work Productivity Loss Among Employed Patients With Depression, J. Occup Environ Med 2004 Jun; 46(0); S346-S55.
“A Mentally Healthy Workforce – It’s Good for Business,” Partnership for Workplace Mental Health, A program of the American Psychiatric Foundation.
Ekstrand v. School Dist. of Somerset, 683 F.3d 826 (7th Cir. 2012)(Verdict reduced per statute).
Quiles-Quiles v. Henderson, 439 F.3d 1, 6 (1st Cir. 2006)(Finding Quiles was “subject to such constant ridicule about his mental impairment that it required him to be hospitalized and eventually to withdraw from the workforce.” Jury verdict affirmed on appeal; award reduced per statute).
Jacobs v. N.C. Administrative Office of the Court, 031215 FED4, December 9, 2014 (The court also held that permitting her to work fewer days at the counter with the public was a reasonable accommodation; with thirty clerks in the administrator’s office, it posed no increase in workload for coworkers).
Solomon v. Vilsack, 763 F.3d 1, 23-25 (D.C. Cir. 2014)(The employee had requested “a maxiflex schedule that would afford her the ability to come to work late on certain days or leave early on other days, as her condition required, as long as all her work was completed properly and in a timely and secure manner.”

Disclaimer: The information provided herein should not be construed or relied upon as legal advice relating to a specific factual situation.