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The last decade has brought with it a significant increase in the number of claims stemming from allegations of discrimination or retaliation as a result of mental health conditions. The mental health of employees is an area of the law that will continue to see a significant increase, as well as an evolution of case law surrounding mental health in the workplace, over the course of the next decade.

In 2016, the Equal Employment Opportunity Commission resolved almost 5,000 mental health-related charges of discrimination and obtained approximately $20 million in settlement for individuals with mental health conditions who were denied employment or reasonable accommodations.

While mental health has been the disability that is quietly whispered about and not always shared by employees in the past, the last decade has brought mental health to the forefront. Employers must be mindful that mental health conditions can create a protected status under federal law (under the Americans with Disabilities Act), employees may have the right to paid or unpaid leave under state or federal law. From an operational sense, improving employee mental health is just good for business.

Organizations need to re-think how they respond to (and in many cases contribute to) mental health issues, while simultaneously complying with the law. The good news is studies show that the return on investment in focusing on mental health at work is worth it. While planning on how to deal with mental health in the workplace in 2020 and beyond, there are some legal employment matters decision-makers should keep at top of mind:

1. It’s a disability

Just like a back condition, a pregnancy or diabetes, anxiety, depression, PTSD and other mental health conditions most likely will qualify as a disability under state and federal anti-discrimination laws. Under federal law, employers with 15 or more employees will be subject to the Americans with Disabilities Act, which will provide employee protection against discrimination or retaliation.

2. Leave may be necessary

In some situations, protected leave may be necessary to manage the condition. Employers should be aware of what their obligations are under the Family and Medical Leave Act and similar state statutes that provide protected leave for employees to care for their own conditions or the conditions of family members. Often times, these stints of leave may be intermittent in nature and, accordingly, open dialogue with the employee is necessary to manage the leave.

3. Is it work related?

If the stress, anxiety or other condition is as a result of work, there is a chance that workers’ compensation may come into play.

4. Are there OSHA reporting requirements?

Is the mental illness one that must be reported under the Occupational Safety and Health Act? Did the employee voluntarily provide the employer with an opinion from a licensed health care professional stating that the mental illness is work-related (29 CFR § 1904.5(b)(2)(ix))? If so, contractors must keep the employee’s name private and keep a separate confidential list of case numbers and names for privacy concerns. 

Reprinted from Construction Executive, a publication of Associated Builders and Contractors. Used with permission.

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