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Paid Leave Covers Mental Health Days But Stigma Still Clouds Use

June 6, 2022, 9:40 AM

Days off for mental health needs usually are included under employers’ paid time off policies as well as leave laws for those workers who have coverage, a point recently reinforced by US Labor Department guidance.

But there’s more work to do for employers to reassure employees they can take mental health days or longer-term leave without repercussions—and perhaps more importantly to ensure that workers’ mental well-being is supported in their day-to-day jobs, according to policy advocates and human resources consultants. It’s a need the pandemic brought into the spotlight with employees suffering burnout or worse, as Covid-19 exacerbated already widespread mental health difficulties.

“Usually it’s not a matter of whether or not the day will be approved. It’s a matter of whether or not the employee feels comfortable asking for the day,” said Vanessa Matsis-McCready, associate general counsel and director of human resources for Engage PEO, which provides outsourced HR services to small and mid-size employers.

“Time off is vital,” she added.

The Labor Department reminded employers in guidance released May 25—in a nod to National Mental Health Awareness month—that mental health problems including anxiety and depression can count as serious health conditions under the federal Family and Medical Leave Act. The FMLA guarantees up to 12 weeks of job-protected but unpaid leave annually to eligible employees to care for their own or a family member’s serious health condition.

Employers face legal obligations to accommodate workers with mental health needs not just under the FMLA, but also the Americans with Disabilities Act. Last year brought an increase in disability discrimination claims ranging from employers’ failure to grant leave requests to wrongful termination related to anxiety, post-traumatic stress disorder, and other mental health conditions, according to the US Equal Employment Opportunity Commission.

Most if not all state and local paid sick time laws, which guarantee days off for shorter-term illnesses, also cover mental and physical conditions, said Jared Make, a vice president at the advocacy group A Better Balance.

There can be gray areas, though, in terms of “what constitutes a mental illness, injury or health condition,” Make said. “That’s something that I think is worked out on more of an individual or state-by-state or locality-by-locality basis.”

Among those gray areas, burnout has been classified as an occupational phenomenon and not a medical condition, according to a 2019 World Health Organization memo.

Uneven Coverage, Uneasy Usage

For any variety of paid or job-protected time off, not all workers have access and low-income, hourly workers are the least likely to be covered.

About three-quarters of workers had access to paid sick time as of March 2020, according to the Bureau of Labor Statistics. Less than a quarter of US workers have paid family leave at work, and the FMLA’s guarantee of unpaid leave is estimated to cover just over half of the US workforce.

Even for those who have coverage, signs indicate many employees don’t feel comfortable talking about mental health at work or asking for time off.

In a survey of workers released last month, 63% reported they’ve taken at least one mental health day in the past year, but 44% of those said they lied to their boss about the reason because they worried they wouldn’t be allowed to take the day or there would be other negative consequences.

That hesitation remains even though 78% of those surveyed said their work quality improved after returning from the day off, said Mike Brown, a spokesman for Breeze, the disability insurance company that released the survey.

“You see this correlation between mental health and strong job performance, but it’s still kind of like taboo in the workplace to ask your boss for a mental health day,” he said.

A separate report, released in 2021 by the nonprofit Mind Share Partners, found workers became more likely to talk with someone at work about mental health during the pandemic, but just under half of those workers reported the conversation was a positive experience.

Perks or Cultural Shift?

The pandemic and resulting tight labor market have nudged employers to make worker well-being a higher priority in their company cultures, not only through more recognition of the need for time off but also through other supports such as employee assistance programs and easier access to tele-therapy, said Ilyse Schuman, senior vice president for health policy at the American Benefits Council.

Employers “are on the front lines of trying to address the mental health crisis,” she said, adding that company leaders simply talking more about mental health is another key to busting the stigma.

Businesses also face increasing legal requirements such as parity for mental health-care coverage under their company benefit plans—another topic for which the Labor Department could issue further guidance after the agency reported to Congress in January that health plans are largely failing to comply.

The pandemic “fast-tracked the movement and conversation about workplace mental health,” said Bernie Wong, a senior manager and principal at Mind Share Partners.

But in many cases “employers leaned into what was easiest,” such as suggesting meditation apps and encouraging people to take more breaks and time off, he said. The group’s 2021 report found 55% of employers offered more time off during the pandemic, including 41% specifically offering mental health days.

For a workplace to truly support employees’ mental health, the added flexibility around time off must come with positive cultural changes, not as a replacement for them, Wong said. Those larger cultural shifts can require addressing work-life balance—such as letting people work from home to avoid spending hours each week commuting and not emailing employees during evenings and off-hours—plus giving employees more autonomy in decision-making, he said.

“Time off, sick leave, all of these are kind of neatly packaged ways to allow people to disengage from work and have a life outside of work,” he said. “No benefit, resource, or perk is going to solve for an unhealthy or unsustainable culture of work.”

To contact the reporter on this story: Chris Marr in Atlanta at cmarr@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Genevieve Douglas at gdouglas@bloomberglaw.com