The workplace has forever been changed by the COVID-19 (coronavirus) pandemic. Governments have drawn lines in what they consider essential and non-essential jobs. Governors have issued stay at home orders, causing offices to shutter overnight. Employees are juggling childcare and teaching duties all while trying to keep up their output from the sofa.
While working from home may seem like a pj-party dream to some employees, for many the last few weeks have been full of terror: fear of catching the virus, of losing a loved one, of losing a job in an economy that is quickly on the downturn, or all three at the same time. On top of this, many individuals are experiencing this fear alone, in isolation and without close contact with the world outside.
According to the Surgeon General, prior to the pandemic, one-in-five adults experiences a diagnosable mental illness each year. Of these, approximately 15 percent also experience a co-occurring substance abuse disorders. These disorders, and their resulting stress and anxiety, result in more absenteeism from the workplace than physical injury or physical illness each year, and according to the World Health Organization, depression in particular is the leading cause of disability worldwide.
On average, employees suffering from depression continue to take a mean of 9.86 sick days per year, significantly more than other major medical conditions. Particularly in light of the lost work days, the toll that mental health-related issues can take on employers is staggering, with mental illness and substance abuse costing employers an estimated $80 to $100 billion in annual indirect costs and $26 billion in direct treatment costs. These costs are as great or greater than the cost of medical and disability payments for employees suffering from hypertension, diabetes, back problems and hearth disease.
Alarmingly, these are the pre-pandemic statistics. On a global scale, the effect of COVID-19 on mental health has been staggering to the extent that the Centers for Disease Control and Prevention (“CDC”) and the World Health Organization (“WHO”) have published extensive, free, COVID-19 specific resources directly on the topic.
While some individuals have been “lucky” enough to be able to transition to teleworking, tens of millions of individuals have lost their jobs as a result of the economic downturn with the number likely far over 30 million at the time this brief is published. Fifty-four percent of individuals surveyed reported suffering a negative mental health impact as an effect of COVID-19.
There is no denying that America is slowly starting to take note of the importance of mental health. While mental health has long been recognized as protected under the Americans with Disabilities Act (the “ADA,”) the EEOC recently took formal steps to provide guidance to employers and employees.
In this article, we assist employers with fostering a mentally healthy workplace and navigating the legal issues surrounding mental health in the context of employment law and the EEOC’s recent guidance. Specifically, it addresses how employers should handle accommodation requests, employees’ right to privacy and leave, anti-discrimination and harassment considerations, and small business best practices. At the end of the article, employers will find some best practice tips to guide them when implementing workplace policies regarding mental health.
The legal framework regarding workplace mental health, generally
EEOC & CDC COVID-19 Workplace Guidelines
Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19) issued by the CDC
Reasonable Accommodation of Mental Illness During COVID-19
Additional Leave for Mental Illness
Addressing Discrimination and Harassment
Hiring Tips for Employers
 David Satcher, Mental Health: A Report of the Surgeon General, U.S. Department of Health and Human Services, preface, (Dec. 1999).
 J.F. Marlowe, Depression’s Surprising Toll on Worker Productivity, Employee Benefits J., 16-20 (March 2002).
 Emily Kuhl, Quantifying the Cost of Depression, Workplace Mental Health, http://www.workplacementalhealth.org/Publications-Surveys/Quantifying-the-Cost-of-Depression-.aspx.
 B.G. Druss, Health and Disability Costs of Depressive Illness in a Major US Concern, Am. J. of Psychiatry, 1274-78 (Aug. 2000).
 An Employer’s Guide to Behavioral Health Services, National Business Group on Health, (Dec. 2005), https://www.businessgrouphealth.org/pub/f3139c4c-2354-d714-512d-355c09ddcbc4.
 Kari Paul, Millennial women face new mental health struggles in the workplace, MarketWatch, March 4, 2017, http://www.marketwatch.com/story/why-some-companies-are-treating-employee-mental-health-days-like-sick-days-2017-02-13.
 Druss, supra, note 4.
 Coronavirus Disease 2019 (COVID-19): Stress and Coping, Centers for Disease Control and Prevention, available at https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/managing-stress-anxiety.html; Mental health and COVID-19, World Health Organization Europe, available at http://www.euro.who.int/en/health-topics/health-emergencies/coronavirus-covid-19/novel-coronavirus-2019-ncov-technical-guidance/coronavirus-disease-covid-19-outbreak-technical-guidance-europe/mental-health-and-covid-19.
 Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights, Eq. Emp. Opportunity Council, https://www.eeoc.gov/eeoc/publications/mental_health.cfm.