Employers can do a variety of things to promote mental wellness among their employees.

Employer-provided health plans typically will offer some coverage and benefits to support employees’ mental wellness, such as counseling, substance abuse addiction resources, medical treatment by mental health professionals, and/or prescription benefits.

Employees may not realize that mental health may be covered under a health plan, much like physical health.

Employee assistance programs (EAPs) also can be a resource for employees, such as by providing referrals to previously identified counselors, addiction specialists, and other mental health professionals, for example. EAPs can save employees from the burden of having to locate resources on their own. EAP providers may offer fixed-fee contracts or fee-for-service contracts to allow employers to provide these and other resources to employees.

For smaller employers with limited means, an EAP may not be realistic. But these employers can still gather contact information for various mental wellness resources and have those ready in case they are approached by an employee seeking help of some kind. Contact information can include local and national resources, such as the National Suicide Prevention Lifeline (1-800-273-8255).

For union employers, employees may be able to look to union member assistance programs (MAPs) offered as part of their union membership. MAPs may offer resources similar to those offered by an EAP.

While striving to promote mental wellness, employers must take care to balance their desire to do right by their employees on a personal level with the confidential nature of private health information, which can pose potential legal risks. Whenever possible, even well-intentioned supervisors and human resources (HR) professionals should tread lightly when an employee presents questions or concerns related to mental health.

The federal Americans with Disabilities Act (ADA) imposes significant restrictions on covered employers when it comes to employees’ medical information. Even a seemingly innocent question to an employee who has shared information about their mental state may constitute an unlawful medical inquiry under the ADA. Additionally, many mental health conditions may qualify as protected disabilities under the ADA, giving rise to additional protections for employees. An employee’s disclosure may trigger an employer’s obligation to engage in the “interactive process” with the employee, in case the employee may need a reasonable accommodation to continue to perform the essential functions of their job.

The ADA can be challenging to navigate. Therefore, supervisors and HR professionals should consult with trusted labor and employment counsel as soon as possible when an employee presents with mental health questions or concerns. This is also true if an employee displays behavior that is concerning to the employer and that may require follow-up action by the employer that does not run afoul of the ADA or similar state laws.

A mental health condition also may qualify as a “serious medical condition” under the federal Family and Medical Leave Act (FMLA). Like the ADA, the FMLA imposes certain obligations on covered employers and provides protections to qualifying employees. Under the FMLA, the main protection is up to 12 weeks of job-protected, unpaid leave. An employee with a mental health condition could be eligible for this type of leave. Ultimately, employers must be aware of the federal and comparable state laws because they cover employee mental health just as they do physical health.

To be responsive to employees while also mitigating potential legal risks, employers should attempt to designate a point person who is experienced in responding to and processing employee inquiries that have a medical component to them (questions about the health plan, requests for leave, etc.). These typically are not inquiries that field supervisors will be equipped to handle. Additionally, a best practice for that point person typically will be to respond to employee inquiries with a simple question: How can I help you? That question focuses on what an employee believes they need, not the potentially protected medical reason they need it. Typically, it will be a better outcome for an employer if they can help an employee while avoiding the risks associated with the employee’s protected health information.

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