march2021 - 14

THE LABOR LAW ADVISOR
The Covid-19 Pandemic and

WORKER MENTAL ILLNESS

IN MARCH 2020, shortly before the COVID-19 pandemic began, I wrote an article on the
impact of mental health issues (https://www.cpapracticeadvisor.com/21130927) in the
workplace and the lack of attention that the subject received at the time. The article noted
that according to the National Alliance on Mental Health, 43.8 million people experience
mental health issues in any given year. Approximately 10 million experience a " serious
mental illness, " one that substantially limits one or more major life activities. These
numbers include millions of workers in U.S. workplaces. At that time, the estimated
economic cost from mental illness was estimated to be in excess of $100 billion per year.
Those circumstances prevailed
before the COVID-19 pandemic turned
our world upside down. We then began
a time of mandatory lockdowns, the
shuttering of churches, schools,
and many businesses. We were
subjected to restrictions on travel
and even everyday interactions with
one another. The economy suffered
massive job losses nearly across the
board. Many of those who lost their
jobs have all but given up hope for
some light at the end of the tunnel.
It may yet be some time before we
see the full effects of the pandemicrelated changes to our daily existence
on our collective mental health. While
the increasing availability of effective
vaccines has put us on a slow path to
ending the pandemic, the end is still
at least months away. We have already
begun to hear about the psychological
impact of months of school closures on
many school-aged children. A recent
report cited a 31% increase in mental
health visits to emergency rooms among
12 to 17-year-olds. Sadly, even suicides
have been reported. In Chicago, the
country's third largest school district,
and in other parts of the country as well,
there finally appears to be some limited
progress on returning the children to the
schoolroom. Unfortunately, the mental
health issues conceivably precipitated
by school closures could have long term
effects on these children.
Many parents have had to confront
perhaps even more stressful circum-

MARCH 2021 ■

stances. In addition to caregiving difficulties, they have had to deal with the fear
and anxiety about the risk to themselves
and their families over possible exposure
to COVID-19 at work. Uncertainty about
workplace changes, the future of their
jobs, and the ability to provide for their
families are certain to take their toll on
workers' mental health.
Workers in essential and non-essential industries alike have been laid off by
the millions. The unemployment rate is
currently 6.3%, an improvement from
the high of 14.7% in April 2020, but still
approximately twice the pre-pandemic
unemployment rate, when employers
in many industries were desperately
seeking additional employees. Employees
in most industries were benefiting as
wages were being increased in an effort
to attract applicants.
The impact of the sudden reversal
of fortunes on the mental health and
well-being of many affected workers has
been and will continue to be devastating.
Many of the millions laid off will have no
job to return to when the pandemic ends
with their employers have been forced
to close their doors permanently. These
laid off employees have been forced to
provide for their families only a fraction
of what they earned before, provided
through unemployment benefits and
stimulus checks. If more than 40 million people develop mental health issues
under normal conditions, what can be
expected from these unprecedented and
stressful circumstances?

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Mental health conditions number
in the hundreds and while it is near
impossible to speculate when and what
specific mental illness may manifest
itself, given what workers have had to
endure for the past year, it would seem
that the stress, anxiety, and uncertainty
would result in some form of depression for many. In fact, even without the
trauma of a pandemic, major depression
is the single most common mental
health illness in the U.S.
Innumerable symptoms of conditions classified as mental illness could
impact an employee's ability to perform
the essential functions of their job. In
many cases the illness manifests itself
in conduct, behavior, or performance
issues that affect co-workers, as well.
Given the likelihood that such issues
may become more prevalent as a result
of the pandemic, employers need to be
more vigilant of what is occurring in
their workplace.
Employers often become aware that
an employee may be suffering from a
mental condition that is affecting them
and the workplace through reports from
fellow employees. In most cases, some
problem behavior or incident triggers concern among co-workers. A major change
in personality, argumentative behavior,
lack of engagement with others, or other
uncharacteristic conduct may be signs of
a problem. Sometimes it is the employee's
supervisor that becomes aware of a
problem when having to respond to a
complaint about an incident involving

RICHARD D. ALANIZ

Senior Partner
Alaniz Schraeder Linker Faris Mayes, L.L.P.
ralaniz@alaniz-schraeder.com

the employee. Given that such mental
health issues are almost always protected
disabilities under the federal American
with Disabilities Act (ADA) and similar
state laws, an employer must proceed
cautiously in attempting to addressing
these issues. Medical privacy rules
similarly require discretion in addressing
any and all employee health conditions.
The EEOC has stringent standards
regarding what and when an employer
may ask an employee regarding the
employee's mental health. The four
circumstances under which an employer
may inquire into an employee's mental
health condition are the following: 1)
After a job offer has been extended,
assuming all applicants in a given job
category are asked for the same medical
information; 2) When an employee has
requested a reasonable accommodation;
3) When the employer is engaging in
affirmative action regarding persons
with disabilities; and 4) When the
employer has objective evidence that
an employee is unable to perform their
job or poses a safety risk because of their
condition. Problem workplace conduct
that implicates a possible mental health
issue would likely satisfy this last criteria.
Ultimately, and perhaps most importantly, employers must show empathy
and make available professional support
and resources for employees suffering
from mental health issues. The goal is
to help them address their condition
and hopefully resume contributing to
their own success and by extension,
the company's success. ■

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march2021

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