E12: Mental Health Issues in the Workplace

In this episode. host Thom Jennings and attorney Kathleen Jennings discuss mental health issues in the workplace and when the ADA and FMLA pertain to each situation. Thom shares another story from his colorful employment history, and the co-hosts also agree that the podcast has become the premier podcast dealing with labor and employment law.

Podcast Episode Transcript

Narrator (00:03):
You are listening to Cover Your Assets, a podcast that discusses the timely and significant legal issues faced by employers. Kathleen Jennings is an attorney who has over 30 years of experience in advising employers as to their legal responsibilities and has written extensively about employment law. Inner Popular Cover Your Assets blog If your business has employees you cannot afford not to have your assets covered.

Thom Jennings (00:35):
Hello and welcome to the Cover Your Assets podcast, your Labor and Employment Off podcast. I believe you know, I did a search the other day, Kathleen, and I don't see any other Labor and Employment law podcasts out there that are nearly as good as ours. Can we start calling it the Premier Labor and Employment Law podcast?

Kathleen Jennings (00:57):
I think we should. I think we should. I think that our podcast should set the gold standard for all labor and employment law podcasts,

Thom Jennings (01:08):
And indeed it has. And of course, last week we had a very special guest my son, your nephew, Thom Jennings. We wanna say thank you and for him being on and we'll let him know how much we appreciate it. And we'll probably have some guests in the near future, but we're back to the old brother sister routine again this week. And just a quick introduction, my sister, Kathleen Jennings is our resident expert and labor law attorney. She's located in the state of Georgia, and I am located in the only state in the United States that ends with letter K, if that ever comes up on jeopardy, New York. So today our topic is again, a timely one, one that's been in the news of late, especially when it comes to labor and employment law. That is, it's metal health, isn't it? Like quiet riot, like people that need heavy metal at work. Is is, was that the topic we agreed on? No,

Kathleen Jennings (02:01):
No. Thom mental health is probably something you would tackle in your other podcast in your other life. We're going to talk about mental health.

Thom Jennings (02:12):
Mental health. It's amazing how one health little letter can make that much of a difference. But yes, we are talking about mental health in the workplace. Again, very timely in a semi post pandemic world, but it's something that's always been kicking around. But this and Kathleen, maybe you can introduce the topic a little bit as it relates to, I believe maybe two laws or regulations, the ada and what, what else would it relate to?

Kathleen Jennings (02:43):
Thom, I would say the a d A and the F M L A. And I would preface the discussion of this topic by saying that really employers should look at two aspects of this topic. First, how can they have a workplace that encourages people to have good mental health, or at least allow them to take care of issues involving mental health. And then we also have to be aware of the laws that prohibit employers from discriminating against people who have a disability that could be a, a mental health disability, cannot harass people on the basis of a mental health disability. You may need to give reasonable accommodations to people with a mental health disability, and you may need to grant them time off under the Family and Medical Leave Act or F M L A if your company is covered by that law.

Thom Jennings (03:43):
All right. So let's start, let's start with some basics. When we talk about a mental health condition it can be, it could be permanent, it could be temporary. Correct. So correct. In terms of the a d a, when it comes to mental health issues and reasonable accommodation, what are the types of things that maybe employers should consider when it comes to, I dunno, we'll, we'll throw out one that I feel is, is fairly common, let's say anxiety and or depression. What, what kind of reasonable accommodations can an employer give that's not gonna interfere with the, the day-to-day functions in the workplace?

Kathleen Jennings (04:23):
That's a hard question to answer. As a general proposition, like a lot of these issues involving a disability, and in particular with a mental health disability, you have to take in on a case by case basis. So it becomes a conversation between the employee, the employer, and really the employee's mental healthcare provider as well, may be part of that conversation. It would really start with an employee asking for some kind of accommodation due to their mental health condition. They may not use the magic words reasonable accommodation, but if an employee comes forward and says, I have this condition and I would, like, for example, I need to work from home because I have anxiety and working from home seems to alleviate the anxiety, I work better, I'm more productive. And would you do this for me? So that's a conversation where the employer would then look at, well, is this a job that can be performed from home? And what we've learned from the pandemic is that there are a lot of jobs that can be performed from home, probably more jobs than we ever thought could be performed from home. So, although there may be some initial pushback from some supervisors or managers, cuz there's some folks that just like to see their employees, you have to look at the track record for that job and see is this a reasonable accommodation for this person?

Thom Jennings (06:08):
And, and this is an issue that has come up because of the pandemic. And I, and I think you sort of touched on the fact that it becomes tricky because now there were jobs that required employees to come into the office and really j maybe jobs that the employer never in a million years would've thought could be done remotely. But then because of circumstances, they set up situations so that it can be accomplished remotely. But like I said, so I guess, so now we're, we're said we're coming out of the pandemic for all intents and purposes. So how does an employer make the argument that the employee that has that, let's say this anxiety disorder, needs to come back in the office if they've successfully accomplished their job from home for, I mean, in it could be upwards of two years,

Kathleen Jennings (07:03):
It would be a hard argument for the employer to make if the employee has been able to successfully perform the job from home. And so that's the kind of history that you would look at to determine is this a reasonable accommodation? Just wanting to see an employee in the office is probably not a good reason to decline that kind of request for an accommodation. So look at the background of the job, look at the employee. It's an individualized assessment in every case.

Thom Jennings (07:39):
So I, I, I guess a question I would ask too is that as an employer is facing these situations, you know, a couple things come to mind. One would be the potential for abuse. So let's say you have workplace of 25 people, and we know we live in a society where everybody kind of keeps score. They, they worry about fairness, you know, it's not fair that that Kathleen gets to work at home, but Thom doesn't and all those types of things. What can an employer do to prevent this, I guess we'll call it a, a domino effect, where you're the first one that says that you can successfully work at home and then maybe, you know, that says to another EM employee, Hey, you know, this is all I had to do is just get my doctor to say that I have anxiety and now I can work from home. And so I guess that leads to, again, how does an employer potentially prevent that if it's something that they don't want? Because who knows, it may work out well for the employer to just have the employees stay working at home. We've seen employers that have benefited from that in terms of rent for office space and things like that. But I'm wondering what kind of documentation an employer can require from an employee that states that yes, this is something that they need to be able to, to perform their particular job.

Kathleen Jennings (08:52):
An employer, if an employee comes forward and says, I have an anxiety disorder and I would like to work from home in order to alleviate it, the employer can request documentation from that employee's medical care provider that shows that in fact, this employee has been diagnosed with this condition. And even follow up with the provider and ask if working from home is indeed a way of alleviating the anxiety. Also, keep in mind that this information needs to be kept confidential. So it's, it's a fine line here because you have an employee working from home, and if you have another employee that says, well, Thom gets to work from home, why don't I get to work from home? The employer can't say to the complaining employee, well, Thom has anxiety disorder and you don't. So that's why he gets to work from home. The employer needs to keep that information confidential about Thom's condition. So the employer has to be very careful in how they explain why Thom's working from home and Kathleen is not.

Thom Jennings (10:07):
And, and, and another piece to that. So once you have an employee that's working at home, somebody with, with an anxiety disorder some of these, these mental health disorders, can, like any illness be temporary? So how often are you able to maybe monitor the, that situation? So let's say the anxiety is brought on by, you know, post pandemic anxiety, which is a very real thing. And then many HR blogs and resources are writing about that, that that has been the basis to say that the pandemic caused a certain degree of, of anxiety, some post-traumatic stress, you know, all those types of things. How often should an employer check in to make sure that that reasonable accommodation should be in place because the, the, the disorder is still something that creates the need for that reasonable accommodation?

Kathleen Jennings (10:58):
That's a tricky question, Thom, because you don't wanna be constantly checking in with the employee and asking, Hey, are you still anxious or are you doing better? So it may be where you set up a, a schedule of, we'll check back in every six months, or maybe we'll check back in every year just to see how things are going. Not necessarily to find out whether you still have the issue, but just to check in and see is this working for you and, and that kind of issue.

Thom Jennings (11:34):
And you know the, the documentation, I know a lot of times a, a psychiatric disorder, sometimes even like a family practitioner will provide documentation to that effect that they have a, a mental health disorder. Can you as an employer say that I would need more documentation to support this mental health condition? Or is it, again, fall into that category where if they provide the documentation, then you just, you have to accept it as, as fact and provide those reasonable accommodations if it makes sense. And when it comes to their job duties,

Kathleen Jennings (12:13):
It would really depend again on the situation. If someone presented a note from their primary care doctor that diagnosed them with depression, and as a result of that this person maybe needs to take a couple extra breaks during the day in order to meditate or something like that you would consider that documentation and, and you wouldn't need to ask that person, well, I need something from someone who's a psychologist or a, a psychiatrist. In some cases, there are some more severe mental health issues that you're probably going to get documentation from a specialist because it's the kind of condition that re that requires specialized care. But you can't require that additional documentation unless you need it as part of the reasonable accommodation process.

Thom Jennings (13:11):
And I know you work with, with hospitals and, and I think that this is again, another timely topic. A lot of, lot of healthcare frontline workers have dealt with, I mean really significantly increased stress on in, in their jobs. So what's the difference between, let's say a mental health condition that is due to either, you know, the genetic makeup could be due to circumstances outside of the workplace and a mental health condition that has, is a direct result of a person's job. So again, maybe I don't know, a nurse or somebody or somebody in a I guess a nursing home would probably be a place that was pretty stressful throughout the pandemic. What, what is the difference when it comes to those types of situations and where do they fall in terms of F M L A and a D a and all those types of things?

Kathleen Jennings (14:10):
I don't think the genesis of the condition makes a difference. If the employee is diagnosed with a condition and they either ask for an accommodation or they ask for time off under the F M L A, then you need to consider the documentation of the condition and go through the interactive process to determine if the accommodation sought is reasonable. So it doesn't matter if it's something that is genetic or something that has been brought on by work or perhaps brought on by some life event, I, if if they're diagnosed with a mental health condition, then you need to deal with it as the condition and not the cause.

Thom Jennings (15:02):
So I mean a little bit back to the cause. So I I, I'll maybe I didn't frame the question properly, but, but wouldn't there be a si couldn't there be a situation where if a mental health condition is brought on and it's proved to be brought on in the workplace, would that, could that potentially fall under a, a workman's comp or a employer disability claim?

Kathleen Jennings (15:24):
That would depend on state law, state worker's compensation law. In some states, mental health injuries are covered by workers' comp in other states they're not. I think this may also speak to one of the, the sides of the issue that I brought up at the beginning of the podcast, which is what employers can do to promote positive mental health in the workplace. What can they do to make the workplace a place where people will be happy to come to work, or if they have mental health issues, how would you encourage people to go out and get treatment for them? Mental health is still something that has a lot of stigma and a lot of people don't want to talk about it. And there are now companies that are trying to bring that out into the open by offering specific mental health benefits or encouraging people to really seek the help that they need for these and not keep it a secret because untreated mental health issues have a poor effect on the workplace. It affects productivity, it affects the other workers around. You're gonna have people with more absences with untreated mental health issues and unfortunately you know, a higher rate of suicide among those folks as well. So it is in an employer's interest to try to encourage employees to do what they can to protect their own mental health.

Thom Jennings (17:10):
Yeah. Now I'm, I'm, I'm glad you circled back to that topic because Guy, I, I think it's a very important topic in the sense that you want to create a atmosphere or workplace where people feel mentally safe. And I think employers, if they're gonna be doing regular trainings for their employees, that tho these are topics that that should be brought up. And I know working in, you know, special education and different and for different, not-for-profits, that's always been a topic that comes up in a training periodically, just saying, you know, what do you do if you're dealing with a stressful workplace situation and everything? And I think we hear that term that's batted around a lot the the hostile work environment. So as an employer, I would imagine that you have to be very careful that when those situations are brought to the employer's attention that they should take them seriously and, and certainly address them because I mean, am I correct in saying that if a workplace environment becomes hostile and maybe it's not related to, you know, any form of discrimination, that there still would be potential for a lawsuit based on the, the mental health of the individual who feels that the environment is hostile,

Kathleen Jennings (18:24):
Characterizing a workplace as a hostile work environment is really a legal term that's related to harassment in the workplace? What I would say is that, do you have a toxic workplace? Do you have managers or supervisors that are creating a toxic atmosphere? Some companies will regularly check in with employees to find out how they feel like they're being treated by their supervisors. You know, are these supervisors encouraging them or are these supervisors acting in a way that's demeaning or bullying or things like that? Because that's the kind of toxic workplace that may not be, may not rise to the level of some sort of actionable lawsuit, but it's not going to enhance productivity in the workplace. It's probably gonna increase the turnover of your employees and you don't want people coming to work every day feeling miserable.

Thom Jennings (19:31):
Yeah, very true. And I one, one other thing I wanna bring up and, and get your thoughts on, I don't know that there's necessarily legal ramifications, but especially if we're talking about mental health, and I'll base this on personal experience for myself and and coworkers, is that it seems like a lot of employers have moved away from having a bereavement policy. And I think one of the most traumatic events that you're gonna deal with as, as a person is when somebody very close to you passes away and the pressure that could potentially be put on an employee who is not able to take off a suitable amount of time to it, it meant it may not even be the, the grieving process, it may just be having to deal with the administrative aspect of the death of a loved one. So what is your advice in terms of, you know, of a bereavement policy?

Thom Jennings (20:26):
And again have you, have you seen any situations where again, a mental health issue could be temporary? Like I said, I, I actually worked with somebody who wound up taking six months off on F M L A to just deal with the death of, of her father because not only did it, did it create the mental health issue, but she just had so much stuff that she had to deal with in terms of, you know, cleaning its house out and everything. Cause they didn't live in the same area anymore. So so what's your thoughts on that bereavement policy, deaths in the family and, and how to deal with that in the workplace? Because, and I'll, I'll, I'll let you talk after I say this one last point. I think it does send a message to the other employees that if, if somebody passes away, and I know you know this story, but like, when our mother passed away, our employer my son and I, we worked together and our employer, when we told him that the funeral was on Thursday, he asked if we were coming to work for the two days before the funeral <laugh>.

Thom Jennings (21:23):
And we both wanted believing that employer very soon afterwards. And I think that, again, anybody that hears that story is gonna go, you really required an employee to come to work. You know, that within 24 hours after he, his mother passed away. So what's your thoughts on that? I know, I, I know I threw a lot at you and I'll I'll shut up now. Let you, that you finally answer that question.

Kathleen Jennings (21:46):
I would say, this is not a legal term, but I would say that that action by your former employer is kind of a dick move. So I would not encourage an employer to have that kind of policy. If an employee wants to come to work sometimes because maybe they just need the distraction, that's fine. But allowing employees to take the time to be breathe the loss of loved ones is one way to help employees with their mental health issues. And if it turns out that an employee does have some depression or other issues, mental health issues that would require additional time off that something, again, will be dealt with with the documentation from the employee and going through the interactive process or perhaps through an application for family and medical leave, leave. So yeah, that's absolutely, I mean, bereavement and the loss of a loved one can certainly either trigger or perhaps enhance a mental health issue that's already there.

Kathleen Jennings (23:00):
And so it is healthy to let employees take time off to, to breathe and grieve for the lost loved ones and if they need extra time to be flexible about it. This is one of these areas, unfortunately, where I think employers have cut back on some bereavement leave because you have those few employees that unfortunately abuse it. And it's one of those situations where a few people make it miserable for the rest of us because they have abused the policy. And that's unfortunate, and that happens with other policies as well. And you hate to see that happen and you really don't wanna have the employer crack down on everybody due to the bad actions of a few.

Thom Jennings (23:50):
Yeah, I, I agree. And, and I, I think situations like that are oftentimes ripe for abuse, but you, you don't wanna swing the pendulum the other way. And one of the topics that is coming up very soon is we're gonna talk about the type of employee who is you know, potentially gonna sue you. And I think a lot of times, again, there may be situations that come up are not directly related to the lawsuit, but if you have a situation where an employee feels aggrieved in one area, which is, let's say with a bereavement policy, that they're gonna begin to start looking for a reason to sue the employer or at least make things difficult for the employer on the way out the door. So these are all things that may not, may not be directly related, but they could be indirectly related.

Thom Jennings (24:33):
And I'm looking forward to that particular topic. I think it's gonna be a lot of fun. Well, we talked about one personal story I had in terms of, you know, my mom and our mom that when she passed away and how the employer handled it. Now here's another one that I'll scenario that I'll throw at you. And I know we've talked about this one as well before, and I was a special education teacher and this will be related to the F M L A and I think, I think most employers know by now that mental health is covered by the F M L A. It's not, it's not something where you have to leave for, you know, just a sick mom or a sick dad or a sick kid. It's, it could be yourself that, that is dealing with issues, especially if it's a, a mental health issue.

Thom Jennings (25:16):
And I worked with a, a teacher, she, she was going through a divorce and just, I guess having a, a rough time of it. And she had, I guess it would be called an intermittent F M L A claim. So she would leave, you know, she basically was given cart blan for to call in on days that she was dealing with the excess anxiety. And I knew this because it was something that she had shared with multiple employees. So I don't want to give the impression that the employer gave us this information. They didn't they were actually very cautious and very respectful of her mental health condition to their credit and, and list employers listening out there, you gotta be careful when it comes to this stuff. If somebody's calling it sick, you, you, you can't say what's going on. If the employee though, decides that they want to tell everybody, then hey, you know, that's, that's their business.

Thom Jennings (26:09):
Anyhow, you know, it got to the point where with her calling in sick all the time that everybody else had to pick up the slack and it really had a, a negative impact on just the day-to-day operations of that particular school. Now she wound up getting terminated because eventually getting terminated because she had posted some risque photos on social media sites, <laugh>, which I don't think we need to do an episode on, not posting risque photos on social media. If you are a special education teacher that has many of your students following your feet

Kathleen Jennings (26:46):
<Laugh>, well, apparently maybe we do because not everybody understands that you're not supposed to do that.

Thom Jennings (26:53):
Yeah, it was yeah, I, I mean, I can only describe one in a way that's semi-professional because this is a professional podcast. I mean, she was, the only thing she was wearing was underwear. She had her hands down her underwear and she had all these pictures you know, kind of covering certain parts of her body so that she would get past the standards on Facebook. But that was, that was eventually the, the final straw. But I remember having a conversation with somebody that had to deal with that particular situation, and they said that it was tricky because you have these two things going on. You know, you have the F M L A claim, but then somebody does this just egregious thing on the side that yeah, they, they eventually want being terminated for. So I don't know what your thoughts are now.

Thom Jennings (27:39):
E even as I discussed this, I think, well, maybe that crazy and I hate to use the term crazy because we are talking about mental health, and I don't want people to think that I'm characterizing people with mental health issues as crazy per se, but I, I feel like her actions were crazy to, to post those photos on the internet, but I almost wonder if she could have turned around and, and said, well, that's a, a function of my, my mental health issues. Either way the employer wound up getting her out. And I don't know what happened there, but I, I wonder what your thoughts are in terms of, you know, that intermittent leave and how it impacts other employees because again, it cause some problems in the workplace and then eventually it spiraled into this whole situation where the teacher did something that was just ridiculous.

Kathleen Jennings (28:25):
Well, normally the intermittent leave, it's, it's something that is available under the F M L A, which is that employees can take less than a full day off under F M L A. But normally you want it to be something that is fairly predictable, because like you said, when you have an employee and you don't know whether they're gonna show up from day to day, that puts a lot of burden on the other employees that are at work because they never know whether they're gonna have to pick up the load for the person who's not coming in. So that is, that is a concern, and that's why you, you really wanna try to make the intermittent leave as predictable as possible so that the employer can then make any kind of allocations of the work in advance and make sure that the other employees are not overburdened with regard to, well, first of all, I'm gonna say, Thom, you shouldn't use the word crazy.

Kathleen Jennings (29:28):
Mental health is one of these issues because it's covered by the a d A, you cannot harass someone on the basis of mental health issues. Which means that if someone is aware that someone in the workplace is maybe struggling with some mental health issues, you don't want employees talking about them as crazy or nuts or anything like that, that could be considered some kind of harassment or even some kind of discrimination if it's, if it's got a negative connotation, which it certainly does. And again, you know, mental health issues have a lot of stigma. So if an employee comes forward and reveals that they have a mental health issue, you wanna make sure that the other employees and the supervisors and the managers respect that and show respect for that and not if, if they have personal views about mental health and there's people out there that do that think, you know, don't take antidepressants or just tough it out, you know, they can keep those views of themselves. They don't need to be talking about it in the workplace, especially if there's someone around who is dealing with that particular issue.

Thom Jennings (30:47):
Absolutely. And that, I think that's a, a great ending point for what has been a very, I, I, I think very informative. It's a topic that we certainly can revisit at a later date and one that's timely. I know that the, you know, mental health issues, like you said, they're, they're very complex. And I'll give you a minute, as I always do at the end of every episode for a couple of takeaways. I mean, the one that definitely comes to mind, the the top of mind right now is that you always gotta be very sensitive to these types of issues, be aware of them. And they're, so, some of them are just so complicated that you just have to be able to deal with each one of them with an open mind and on a case by case basis. What other takeaways do you have from this particular episode, sister Kathleen?

Kathleen Jennings (31:35):
I would say another takeaway would be do what you can to try to assist your employees who have mental health issues and try to encourage them to get the help they need and not stigmatize mental health issues. Also, keep in mind that these protections can also apply to an employee who is perhaps caring for a relative, a spouse, the child with mental health issues as well.

Thom Jennings (32:07):
All right. Well, very good. Well contact information. How can people get ahold of you if they have any other questions with this particular topic or any topic or trainings or any of those great things that your, your law firm offers?

Kathleen Jennings (32:19):
Or if you just wanna tell us what a great podcast that is, you can shoot me an email at kj j wim law.com.

Thom Jennings (32:28):
Awesome. And this is, this has been a, a great time doing these podcasts. So next week, again, our topic, we'll kind of tease it a little bit, is what was the topic we're discussing for next week?

Kathleen Jennings (32:38):
Well, we're gonna, gonna profile the kind of people that are most likely to become a plaintiff.

Thom Jennings (32:45):
See, now this felt like one of those Batman shows that we grew up with. You know, where you have like the ending and then you got the little cliffhanger. It's like, stay tuned next week for the employee that is most likely to sue you. So that's gonna be an exciting one as always. Thank you very much. We we did hit officially the 200 download mark for the podcast, which is a, a milestone. So we appreciate everybody out there that helped us get there. Please start sharing if you would write a review, we'd appreciate it a kind word and of course, and, and if you have a topic that you'd like us to discuss, we'd be happy to do that as well. So for myself and our resident expert, Kathleen Jennings, we'll see you next week. Same bat time, same bat,

Kathleen Jennings (33:31):
Same bat channel, <laugh>. All

Thom Jennings (33:34):
Right. Again, thanks for listening to Cover Your Assets podcast. We'll see you next week.

Podcast Disclaimer

The Cover Your Assets-The Labor and Employment Law Podcast is produced by Thom Jennings of the Caronia Media Group. For more details, you can contact him at thom@caroniamediagroup.com.

The information provided in this podcast is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this podcast or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings. The opinions expressed at or through this site are the opinions of the individual hosts and guests.