Return to Work Considerations: COVID-19 and Mental Health in the Workforce

By Elias Kahn

American businesses continue to wrestle with what “return to work” really means for their workforce, whether it requires everyone who worked in an office to come back to the workplace, a shift to a remote work environment or some sort of hybrid approach. In the face of such variation, what’s clear is that an ongoing casualty of the COVID-19 disruption is the mental health of American workers.

The pandemic amplified preexisting mental health issues for employees and significantly increased the risk of worker stress and burnout, according to Mental Health America’s “Mind the Workplace 2021 Report.” Based on a nationwide survey last winter, the report tells us nine in 10 employees reported that workplace stress was affecting their mental health, and three in five felt they were not receiving adequate support from supervisors to help them manage that stress.

However, it appears that more employers are hearing the alarm bells and taking action. A July 2021 study from The Hartford found that 70% of U.S. employers now recognize mental health as a significant workplace issue, and nearly six in 10 U.S. workers feel the culture of their companies has become more accepting of mental health challenges this year.

The reasons for COVID-19’s impact on employee mental health are varied: social distancing policies; mandatory lockdowns; periods of isolation after possible exposure to the virus; anxiety about getting sick; layoffs and income loss; and of course, the devastating personal tragedies associated with deaths of loved ones.

And in addition to any good employer’s concern about the welfare of their valued employees, the fact is that mental health problems in the workforce have a direct impact on the success of the company. In fact, 31% of U.S. employers report the strain on employee mental health is having a significant or severe financial impact on their company due to unplanned absences and prolonged disability leaves.

In-house counsel need to brace for the growing challenge of providing much-needed mental health programs and services to their company’s employees. This requires  attorneys to stay apprised of the applicable laws and regulatory guidance on mental health in the workforce.

A variety of federal laws come into play when building or reviewing your organization’s workplace mental health policies, including the Americans with Disabilities Act (ADA), the Rehabilitation Act and the Family and Medical Leave Act (FMLA). Here are three major areas—drawn from a newly published practice note authored by Practical Guidance contributing attorneys Jennifer Mathis, Lewis Bossing and Sara Frank—where you may want to review your existing policies and make sure they are aligned with the latest agency guidance.

1. Reasonable Accommodations/Telecommuting
   
   Employers must make reasonable accommodations under the ADA for employees with disabilities. This requirement has given many individuals the option of working remotely. An employer’s agreement to allow telecommuting during pandemic-related lockdowns does not mean remote work will be a reasonable accommodation in all cases, but the widespread use of telecommuting may well be a reasonable accommodation in many unique circumstances.
   
   Where remote work is not a reasonable accommodation, an employer may still have to provide other accommodations. For example, an employer may need to shift an employee’s location or install a barrier (e.g., plexiglass) to ensure distance from other individuals or reassign the employee to a vacant position for which the employee is qualified. The U.S. Equal Employment Opportunity Commission (EEOC) has served notice that workers with certain psychiatric disabilities may have more difficulty with COVID-19-related disruptions to daily life, and these workers may be entitled to a reasonable accommodation, such as telecommuting or a flexible work schedule.

2. Medical Exams/Disability-Related Inquiries
   
   The ADA and the Rehabilitation Act both impose restrictions on medical examinations and disability-related inquiries, including those related to psychiatric disabilities. This regulatory guidance still applies to employees returning to the workforce after COVID-19. After an employee is hired, any disability-related inquiry or medical examination must be job-related and consistent with business necessity.
   
   An employer may ask workers if they have COVID-19, if they have been tested for COVID-19, if they are experiencing symptoms associated with COVID-19 (e.g., fever, chills, cough, shortness of breath or sore throat), and if they are vaccinated against COVID-19. An employer can also require a worker to take a COVID-19 test to determine whether the worker may pose a direct threat to other workers. The EEOC states that, in general, employers may follow recommendations from the Centers for Disease Control and Prevention or other public health authorities regarding COVID-19 testing and screening.

3. FMLA Leave
   
   An employee who is eligible for leave under the FMLA and is sick with COVID-19-related symptoms—or who is caring for a family member who is sick with COVID-19-related symptoms—may be entitled to leave under the FMLA. The U.S. Department of Labor, which enforces the FMLA, has encouraged employers to provide flexible leave policies for their employees who are ill with COVID-19, or who have family members with COVID-19, so they can stay home and minimize the spread of the virus.
   
   Workers with psychiatric disabilities that are related to or exacerbated by COVID-19—or who have family members with such disabilities—may be entitled to the FMLA’s 12 weeks of annual, unpaid, job-protected leave.

Conclusion

COVID-19 has taken a horrific toll on millions of lives worldwide, and it continues to exact a cost on millions more who are returning to the workforce this year. Your organization likely has employees who are struggling with very real mental health issues, such as anxiety, depression, post-traumatic stress disorder, social anxiety and sleep disorders.

In the past, this has been somewhat of a blind spot for employers. A 2019 study by the American Psychiatric Association found that just one in five employees was completely comfortable discussing mental health issues with co-workers and supervisors due to fears of workplace discrimination. These fears were well-founded; during fiscal year 2016, the EEOC resolved almost 5,000 charges of discrimination based on mental health conditions.

In-house counsel need to lean into this issue and make sure their organizations are complying with their legal—and ethical—obligations to help their valued employees suffering from mental health challenges as they return to work. It is not only a compliance issue; it is also a bottom-line issue for the company’s financial success.

LexisNexis® offers comprehensive resources to help corporate legal professionals navigate these important issues, including our COVID-19 Resource Kit: Return to Work, which is updated regularly.