Updated: Jul 15, 2020
By Shelby Matsumura
If there is one word we, as a society, hear more than “Coronavirus,” it is the word “uncertain.” We are uncertain about the health and safety of our loved ones and the general public. We are uncertain if the world will ever return to the way it once was. Sometimes, it feels that we are constantly questioning our next steps in any given situation. This level of uncertainty is felt by so many Americans and has had the unfortunate effect of creating a spike in mental health issues across the country. According to a Kaiser Family Foundation poll, nearly half (45%) of adults in the United States reported the Coronavirus as having an impact on their mental health.
The Washington Post also shared a shocking statistic from a federal emergency hotline for people suffering from emotional distress. The hotline registered a 1,000% increase in calls this past April, compared with the same time last year.
These statistics clearly show that business owners need to be aware that their employees can also experience the Coronavirus’ negative effects on their mental health. In this article, the Legalucy team would like to share important considerations every business owner should know when addressing employee mental health during this pandemic, such as protections afforded by the Americans with Disabilities Act and how to best support the mental welfare of your workforce.
Mental health under the Americans with Disabilities Act (ADA)
The Americans with Disabilities Act (ADA) protects against discrimination based on disability. Under the ADA, disability is defined as:
· A physical or mental impairment that substantially limits one or more major life activities of such individual;
· A record of such an impairment; or
· Being regarded as having such an impairment (as described in paragraph (3) of this statute, which you can read here).
Surprisingly, the ADA was not broadened to include psychiatric disability until the ADA Amendments Act of 2008. Now, employees with psychiatric disabilities or mental health conditions are also afforded legal protection under the ADA.
When an employee with a disability is hired, whether they disclose their condition to their employer is optional because it is private medical information. The only exception is if that employee asks for a job accommodation, then they must share their disability status that warrants this request. Keep in mind, though, that whatever the employee discloses about their medical history, must be kept confidential and protected by the employer.
Every employee covered by the ADA has the right to ask for a reasonable accommodation. If an accommodation is needed, the employer is obligated to follow through on that request, unless it causes undue hardship. A job accommodation, as defined by the ADA, is “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” Reasonable accommodations can include:
· Flexible scheduling to make time for medical or therapy appointments
· Quiet office space or devices that create a quiet work environment
· Changes in supervisory methods or how assignments are communicated to employees
· Permission to work from home.
An important distinction the ADA makes about qualifying mental health conditions is that it substantially limits one or more major life activities. However, according to the U.S. Equal Employment Opportunity Commission(EEOC), a condition does not need to be permanent or severe to be “substantially limiting.” It does not matter if symptoms come and go, but rather, how limiting the symptoms are when they are present. Thus, even if you do not have chronic depression, you may still be protected by the ADA if your symptoms are “substantially limiting” on major life activities during a depressive state. The following conditions, among others, could qualify under the ADA:
· Major depression
· Post-traumatic stress disorder (PTSD)
· Bipolar disorder
· Obsessive-Compulsive Disorder (OCD)
The purpose of these protections is to level the playing field between employees with disabilities and those without. The ADA wants to place disabled employees in a position that affords the same opportunities to work and to succeed amongst the general workforce. However, every employee, regardless of their disability status, shall be held to the same standard and quality of work. Employers are not required by law to hire or keep an employee who cannot perform the basic functions of the job. If you are a disabled employee who is struggling to complete their work, this would be a good opportunity to ask for a job accommodation.
However, if an employer fires an employee with a disability, they need to have objective evidence showing that the employee cannot perform the job or that they pose a safety risk even with a reasonable accommodation. As explained by the Spiggle Law Firm, this decision cannot be based on stereotypes or myths surrounding the employee’s mental condition. Such discrimination and harassment are not allowed under the ADA. Further, if an employee is harassing a fellow coworker with a disability, the employer must take action to prevent it from happening again in the future. Disability-based harassment is never appropriate. For more information, check out the EEOC.
The CDC also provides helpful ways to reduce stigma regarding mental health, COVID-19, or racial prejudice in the workplace that can decrease harassment or discriminatory practices. Showing employees that you, as their employer, care about their mental health can emphasize solidarity with the team and create more collaborative productivity as a business.
How to support the mental health of employees during a pandemic
While the ADA creates legal protections for employees suffering from mental health conditions, there are steps employers can also take to provide mental health support and services on a daily basis. Especially now, with all of the uncertainty this pandemic brings, it’s more important than ever to check in on the employees who are working to keep your business alive. This is a critical time to build strong bonds of trust within your business that will show your employees that you have their back even in the face of a crisis. Here are some simple but meaningful ways business owners can support employee mental health from the Harvard Business Review(HBR):
· Ask, “are you okay?” – It seems easy enough, but HBR shares that almost 40% of people say their employers have not even checked in on their well-being since the pandemic began. Supporting mental health cannot start until an open line of communication is created between employee and employer.
· Engage in active, supportive listening – Be open, be understanding, and don’t be afraid to reciprocate.
· Consistency is key – Discussing mental health should be a steady practice and an ongoing priority for the team.
· Share mental health resources – According to HBR, employees who work at a business that shares mental health resources are 60% more likely to say that the company cares about their well-being. Knowing what resources are available can help with stress management and lower feelings of uncertainty.
Employers can share many mental health resources, but here are a few links to get you started:
· Mental health charity Mind provides tips on “How to be mentally healthy at work.”
· Online screening resources, like this website, provide a self-assessment tool for when you are feeling stressed, anxious, or depressed.
· Mental Health America shares resources specific to managing mental health during the Coronavirus pandemic.
Tips for working from home
If, like most businesses, your employees work from home, it can be challenging to promote mental health support and services as a small business owner. However, working from home is often a source of anxiety and uncertainty for employees who have never had to do so before. To help combat these concerns, employers can share tips on working from home to provide structure and stability for their employees.
· Maintain working hours at home – Even though employees do not have to come into the physical workplace anymore, encouraging them to stick to the usual working hours can help structure their day so they can feel productive and in control of their work.
· Have a morning routine – Wake up, have some coffee and breakfast, and get dressed. Continuing to perform the same rituals that you used to do before coming to work in the pre-pandemic era can help get your mind and body in the right space to get some work done from the comfort of your home.
· Protect your time – Schedule time for breaks in the day. Take a break for lunch, take a break in the afternoon, and allow yourself to take those breaks in their entirety. The risk of burnout can still apply in a work-from-home context.
· Protect your space – Designate an area of your house as your office space and set boundaries with the people around you. Do your best to let everyone know that you are in work mode when you are in this part of the home and do not want to be disturbed.
· Manage expectations – No matter how many tips and resources you utilize, the most important thing to remember is to manage your expectations. Ideally, this transition would be so smooth that no one feels any difference, but that is not the case, and it is okay not to be operating at a 100% capacity. Work-life balance can be hard to find when it is occurring in the exact same space, every single day. Be reasonable and be forgiving of yourself.
A summary of navigating mental health between employers, employees, and the workplace
The mental health of employees has been a growing concern for business owners over the past decade and COVID-19 has demonstrated just how crucial it is for employers to address this issue.
Under the Americans with Disabilities Act, employers must afford disabled employees the same opportunities as the rest of the workforce. If a disabled employee asks for a reasonable accommodation to perform their job, an employer must provide that accommodation unless it causes undue hardship. However, if any employee, at any time, cannot perform the basic functions of the job, then that is appropriate grounds for dismissing that employee.
Employers should be aware though that disability-based discrimination is a serious violation of the ADA. If an employee with a disability is fired, the employer must have objective evidence upon which they based their decision. To dismiss a disabled employee because of the stigma surrounding that disability is discriminatory and could have severe legal consequences for the employer.
This pandemic has brought widespread uncertainty, which has led many Americans to struggle with mental health issues. Providing support to your employees during this time is essential, not only for your business, but also for promoting teamwork, morale, and trust. Mental Health of America featured some employers who are doing an excellent job supporting employee mental health, such as Culligan Water who provides weekly self-care videos and manager well-being calls, and Devils Backbone Brewing Company that hosts team bonding events over Zoom.
Although these businesses are larger companies, the mental health programs and practices they have implemented are accessible to all. Protecting the mental health of your employees is not only important in a legal context but should be prioritized on a daily basis.
Are you interested in launching or sustaining a pandemic proof small business? Spot issues, take action, stay safe, and thrive in a post Covid-19 world with Legalucy. Learn more at thelucyreport.com
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