Workplace mental health and the compliance landscape – connecting leaders, legal, and HR: Part I

By Judge (Ret.) Mary McClatchey and Sally Spencer-Thomas, Psy.D., MNM for Insurance Thought Leadership, first published February 2017


In recent years, thought leaders in business, government, and risk management have developed a sophisticated understanding of the bottom-line impacts of untreated mental illness in the workplace. For example, mental health and brain science dominated the agenda at the Davos World Economic Forum in 2015. And, the National Business Group on Health held its first CEO Mental Health Summit in October 2015. Among the costs highlighted in these forums: worker productivity loss, high health care utilization rates, skyrocketing disability outlays, and employment litigation.

To further advance mental wellness in the workplace, it’s essential for legal and human resources to be part of this collective effort. Here, we explore this disparity in approaches and discuss why it is so harmful to the interests of all – employers, insurers, employees, and their families.

What most thought leaders know about workplace mental health, in a nutshell, is this:

  1. mental health conditions are common and treatable, with a 25 percent incidence rate and an 80 percent recovery rate akin to chronic physical illnesses;
  2. early detection and treatment are the most effective and inexpensive means of helping employees get well and return to full productivity quickly; and
  3. if an employee takes a leave of absence, the longer the absence, the less likely the employee is to return to work.

Thus, the organizational strategic imperative is to create workplace conditions designed to enhance early detection and treatment, restoring the status quo as efficiently as possible.

In stark contrast to this organizational imperative, legal and human resources professionals often advise supervisors, managers, and EAP professionals to treat potential emotional and mental health issues exclusively as a performance matter. This advice is usually driven by a desire to “avoid an ADA claim.” However, this approach usually postpones the inevitable, making an ADA claim more, not less, likely.

The avoidant approach often results in this pattern: a continuing decline in the employee’s condition and work performance, a severing of trust between employee and supervisor, and isolation from others at work. Once a disciplinary action or performance improvement plan is imposed, both parties cut ties and a toxic cycle of leave of absence, disability claim, a request for accommodation, a failed interactive process, separation of employment, and/or either litigation or a pay package results. This is an expensive, disruptive, and painful process that can often be avoided.

Employers would do well to consider this as an alternative approach:

Design a mental health policy that will unify executive leadership, legal counsel, and human resources around the organization’s strategic approach to overall wellness.

  1. This policy defines the vision, and the business case, for improving the mental health of the workforce and utilizing the ADA interactive process as an effective means of achieving early detection and treatment of these impairments.
  2. Training for supervisors, managers, legal counsel, HR, EAP staff, and health care providers will highlight: a timely and collaborative exchange of information and interactive process maximizes success; the ADA does not require a fundamental alteration of any job; work teams and supervisors need to partner with HR on making accommodations work.
  3. The policy will establish a confidential process for employees to obtain affordable, accessible treatment (either through existing vendors or through curated referrals).
  4. Developing and implementing the mental health policy can stimulate and engage your organization in a discussion of the high incidence of emotional and mental health impairments and how these common, treatable conditions can be accommodated.
  5. Integrate Mental Health 101 Training into total wellness programs, including how to mitigate and address stressors in the workplace, how to respond to a colleague or supervisee who may be struggling, and how to seek help confidentially.
  6. Designate and train Mental Health Champions who are available as confidential resources to anyone at any point in the chain of command dealing with a mental health issue.

When executive leadership, legal counsel, and human resources unify behind a strategic, business-savvy approach grounded in total wellness and ADA compliance, everybody wins.

Insurance Thought Leadership’s ongoing series of articles focused on suicide prevention is authored by the Workplace Task Force of the National Action Alliance for Suicide Prevention, the public-private partnership championing suicide prevention as a national priority.


About the Authors:

Judge (Ret.) Mary McClatchey, President of WorkSmart Partners, has three decades of experience as a judge, employment law attorney, workplace mediator, organizational consultant, and trainer. Her company provides employers with transformational human resources, employer compliance, flexible work, and mental health programs. An innovator in workplace mental health programming, Judge McClatchey speaks often on the business and legal case for early detection, accommodation, and treatment. As a Senior Administrative Law Judge for the Colorado State Personnel Board, McClatchey decided and mediated federal and state employment and civil rights claims for 15 years. She also served as General Counsel for the Colorado Civil Rights Commission in the Colorado Attorney General’s Office, has litigated extensively, and has founded, grown, and served on the boards of several community organizations. McClatchey is a member of the National Action Alliance for Suicide Prevention’s Workplace Task Force.  She can be reached at

Sally Spencer-Thomas. As a clinical psychologist, mental health advocate, faculty member, and survivor of her brother’s suicide, Dr. Sally Spencer-Thomas sees the issues of suicide prevention from many perspectives. Currently, she is the CEO and Co-Founder of the Carson J Spencer Foundation, a Denver-based organization leading innovation in suicide prevention. One of the main programs of the Carson J Spencer Foundation is “Working Minds: Suicide Prevention in the Workplace” – the nation’s first comprehensive and sustained program designed to help employers with the successful prevention, intervention and crisis management of suicide ( Additionally, she is the Co-Lead of the Workplace Task Forces for the National Action Alliance for Suicide Prevention, and the Co-Chair of the Workplace Special Interest Group of the International Association for Suicide Prevention.