CSG Law Alert: May is Mental Health Month: What Employers Need to Know
Mental Health Awareness Month may be coming to an end, but it is never too late to review your business’s disability and leave policies to ensure that you are complying with the law and supporting your employees’ well-being.
The National Institute of Mental Health estimates that 1 in 5 people will experience a mental health condition in their lifetime, and, according to a 2024 research study conducted by LIMRA, 75% of workers say they have experienced at least one mental health challenge either “sometimes” or “often” during the past year. It is therefore not surprising that, according to the same study, 89% of workers had some interest in having their employers provide mental health benefits or resources, with 49% responding that they were “very” or “extremely” interested.
Mental health is also a concern for employers as employee mental health struggles are associated with decreased workplace productivity and increased absenteeism and presenteeism. Accordingly, employers’ attention to employee well-being is on the rise. A 2024 Employee Benefits Survey conducted by the Society for Human Resources Management (“SHRM”) found that 90% of employers offered mental health coverage in 2024 – up from 84% in 2019.
Yet, despite the availability of such benefits to most employees, a poll conducted by the National Alliance on Mental Illness in 2024 revealed that 26% of employees do not know whether their employer offers mental health benefits and only 53% of employees know how to access their mental health care benefits.
The prevalence of mental health conditions in our society and employees’ relative lack of knowledge about avenues for support demonstrates why every employer should be aware of the federal and state laws that may be implicated by an employee’s mental health condition and their obligations under such laws, which includes providing employees with information about available support. Below are some questions that employers should be asking themselves.
What Laws Are Implicated by an Employee’s Mental Health Condition?
- The Family and Medical Leave Act (FMLA) includes “mental condition” in the definition of a serious health condition that could entitle an employee to leave. State leave laws also cover mental health conditions.
- The Americans with Disabilities Act (ADA) includes mental impairment in the definition of a disability and the related federal regulations specifically identify as examples, any “mental or psychological disorder such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disability.”
- The New Jersey Law Against Discrimination (NJLAD) identifies specific examples of disabilities, including “any mental, psychological, or developmental disability, including autism spectrum disorders, resulting from anatomical, psychological, physiological, or neurological conditions which prevents the typical exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques.”
- The New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) include mental or psychological impairments in their definitions of a disability.
What Are Employers’ Obligations When an Employee Has a Mental Health Condition?
- Under the FMLA, an employee suffering from a serious mental health condition may take up to 12 workweeks of protected, unpaid leave in a 12-month period. When applicable, the requirements for employers with 50 or more employees include, among other things:
- Notifying an employee of their eligibility to take FMLA leave within five business days of acquiring knowledge that an employee’s leave may be for an FMLA-qualifying reason.
- Continuing group health insurance coverage for an employee on FMLA leave under the same terms and conditions as if the employee had not taken leave.
- Returning an employee to the same or equivalent position they held when the leave commenced.
- Under the New Jersey Family Leave Act (NJFLA), an employee may take up to 12 workweeks of protected, unpaid leave to care for a family member suffering from a serious mental health condition. This requirement applies to employers with 30 or more employees, rendering a broader range of employers facing similar requirements as under the FMLA.
- Under the New York Paid Family Leave Law (NYPFLL), all employees may take up to 12 workweeks of paid leave to care for a family member suffering from a serious mental health condition, regardless of the size of the employer.
- Under the ADA, an employee who suffers from a disability (which may not be visible or recognizable) may need a “reasonable accommodation” to perform the essential functions of the job. When applicable, the requirements for employers with 15 or more employees include, among other things:
- Communicating with an employee to determine if there is a reasonable accommodation the employer can provide, absent undue hardship, to overcome those limitations.
- Exploring reasonable accommodations with an employee without a specific request by the employee, when a disability is obvious or apparent.
- Considering the essential functions of the employee’s position, the employee’s limitations, and the effectiveness of potential accommodations.
- Under the NJLAD and the NYHRL, all employers, regardless of size, are required to work with employees who have disabilities to afford them reasonable accommodations to perform the essential functions of the job.
What Accommodations Are Available for an Employee With a Mental Health Condition?
Accommodations for mental health conditions may look different from those necessary to accommodate a physical disability and can come in a variety of different forms, including:
- Flexible Workplace (remote work; hybrid scheduling)
- Scheduling (part-time work hours; adjustments to the start or end of work hours; opportunities to “make up” missed time)
- Leave (sick leave; flexible use of vacation time; additional unpaid or administrative leave; intermittent leave)
- Breaks (scheduling breaks according to individual needs rather than a fixed schedule; more frequent breaks; provision of backup coverage to allow breaks; telephone breaks during work hours to call professionals for support)
- Modifications to Working Environment (reduction/removal of distractions; private workspace; increased natural lighting or full spectrum lighting; music or noise-cancelling headphones)
- Equipment/Technology (recording equipment to allow for review of meetings; environmental sound machines; software that assists with calendars, organization, or distractions such as pop-up screens)
- Modifications to Supervision Techniques (additional assistance or time for orientation activities; additional or modified training materials; regular meetings with employee to discuss workplace issues and productivity; additional forms of communication and/or written and visual tools)
- Employee Assistance Programs (EAPs) (mental health programs; referral services; family services; counseling referrals; substance abuse programs; financial counseling; professional coaching)
Employers who are in tune with their employees’ concerns, including those about mental health, experience better rates of retention and productivity than those who do not. A study conducted by Aflac in 2024 found a strong correlation between employees’ job satisfaction and their belief that their employer cares about their overall mental health. Conversely, of the 48% of employees who did not believe that their employers cared about their mental health, 60% were at least somewhat likely to look for a new job in the next 12 months. Accordingly, every employer should strive to convey to their employees that they care about their well-being and to keep their employees informed about the benefits available to them, including through regular updates to employer policies and employee notices.
If you are an employer seeking guidance regarding your obligations under the Americans with Disabilities Act, the Family and Medical Leave Act, or their corresponding state laws, including but not limited to compliance with and implementation of corresponding employee policies, please contact your CSG Law attorney or the author of this alert.