COVID-19 Is Impacting Your Employees’ Mental Health

Are you prepared? Do you have procedures in place to handle the mounting requests for accommodations?

While my management side employment practice has always included helping employers navigate their legal obligations to accommodate employees with disabilities under various federal, state, and/or local laws, this one aspect has skyrocketed in recent months.

And it’s no wonder. In August, the Centers for Disease Control and Prevention (“CDC”) reported that almost 41% of US adults are struggling with their mental health or substance use.

This is double what has been historically reported pre-pandemic—as we talked about here, 1 in 5 adults suffer from mental illness in any given year, according to the National Alliance on Mental Illness (NAMI).

Allostatic Overload Is Increasing Mental Health Challenges

Now, we add “allostatic overload” to the mix. What the heck is that?

Well, it’s my new favorite term. In a recent essay to the Washington Post Magazine, columnist Karla Miller adeptly describes allostatic overload as the term for what happens to a brain processing stress signals nonstop, which, as she describes, consumes mental resources faster than a person can replenish them.

The bottom line is that, of course, rates of anxiety and depression (to name just two mental health issues) have increased. We have no idea when this pandemic will end, and, uncertainty tends to foster anxiety. Allostatic overload is likely exacerbating these conditions as well as creating them for folks in whom they did not exist.

So, it’s no surprise that we’re seeing increasing mental health challenges in the workplace and corresponding requests for accommodations—the workplace is a microcosm of society, as my partner Rich Cohen often says.

What Can Employers Do?

HBR has some advice on this front, and I agree with most it, including:

  • Talk with your teams about mental health. I think authentic communication destigmatizes the whole idea of mental health as a “problem,” reframes it as a workplace challenge, and presents an opportunity for creative and even innovative ways for people to work together. Communicate. And then communicate a little more. Check in with the people you work with, especially now that you can’t grab lunch or coffee together or just stop by another person’s office or cubicle.
  • Lead by example. As I’ve written countless times in this blog, organizational leaders set the tone, and people tend to follow the leader. If you, as a manager or supervisor, prioritize mental health, your employees are more likely to do so as well.
  • Training, training, training. Training managers and even the C-suite to recognize requests for accommodations for mental health disorders and that providing them complies with federal law. Most accommodations for mental health disorders are inexpensive, if not free.

Results from one (pre-pandemic) study states that nearly 85% of people say they’re uncomfortable discussing mental illness at work, and NAMI estimates that 8 in 10 workers with a mental health condition do not get treatment because of the shame and stigma associated with it. If people aren’t seeking treatment and are uncomfortable talking about mental illness at work, they sure aren’t seeking reasonable accommodations  either.

That can land an employer in hot water.

What Else Can Employers Do To Help And Stay Out Of Trouble? Especially About This Whole Idea of “Accommodations”

The Americans with Disabilities Act (ADA) (and other state and local laws) requires employers to engage in an interactive process with an employee to determine reasonable accommodations that help an employee with a physical or mental health impairment perform the essential functions of the person’s job.

(We’ll save employer obligations under the Family Medical Leave Act or the Families First Coronavirus Response Act or various state-specific laws like New York’s for other posts.)

It doesn’t mean that employers must provide whatever an employee requests—an accommodation should not impose an undue burden on the employer; otherwise, it’s not a “reasonable” accommodation.

To comply with the ADA, an employer must engage in the interactive process to gain an understanding of how the disability affects the employee’s ability to do the job.

The interactive process is, to quote The Fray, just a talk—a subheader to the entreaty to “communicate.”

Fisher Broyles

Engaging in the interactive process enables you, as the employer, to determine whether or not an employee requires an accommodation. During this process, you obtain from your employee, or the employee’s health care provider, an understanding of how the disability affects the employee’s ability to do the job. As employers, we have an ongoing duty to engage with employees to determine reasonable accommodations that may be available to enable qualified employees to perform the essential functions of their jobs.

An employer can and should request information about functional limitations caused by the disability so as to comprehend the nature of the employee’s difficulties, how an accommodation could alleviate an employee’s limitations, and which accommodations may be appropriate.

I listed several common accommodations in a prior post about returning to work during the pandemic:

  • elimination or substitution of “marginal” functions (i.e., incidental job duties and not essential functions of a particular job, or
  • temporary modification of work schedules, or
  • increasing social distancing by moving a person’s workspace.

Also, the website JAN provides an extensive list of accommodations for employees who suffer with mental health issues including flexible scheduling, additional time to learn new tasks, time off for therapy, frequent breaks, checklists. The point is that effective accommodations depend on an employee’s job duties, the workplace itself, and the type of job and position.

Finally, and critical for employers, document substantially your efforts to engage in the interactive process, conversations with employees during the process, and any determination not to provide an accommodation because of an undue burden. This will mitigate a company’s risk in case the employee files a charge of discrimination or a lawsuit.

As employers, we certainly cannot prevent allostatic overload, but we can certainly accommodate its increasing effect on employees’ mental health by engaging in the interactive process and working with employees in compliance with the ADA.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.