When Employees Are in Crisis: A Practical Resource to Guide Employers

Courtesy of Fisher & Phillips LLP

When an employee stops showing up to the office, talks about wanting to give up, or appears impaired during work hours, managers and HR staff might feel unsure how to respond. But you can be supportive while also addressing legal obligations, safety, and business needs through a bit of planning, training, and resources. While employers are generally not mental health professionals, you can play a critical role in identifying warning signs and connecting employees with the support they need. Here are eight practical steps to help your managers and HR department respond in real time to serious and sensitive situations, as well as the key legal points to keep in mind.

1. Train Managers and Employees to Recognize Warning Signs

Managers and co-workers are often the first to notice changes in an employee’s behavior. Watch for frequent absences, poor performance, detachment, or comments that suggest they feel hopeless or are thinking about self-harm.

Action Items

• Provide managers with a reference guide that includes check-in language, such as: “I’ve noticed you seem overwhelmed lately. How are you doing?” The National Alliance on Mental Illness (NAMI) says the key is being understanding and non-judgmental.
• Emphasize that employees and managers alike should follow the organization’s crisis and workplace violence prevention protocols rather than attempt to manage the situation themselves. They should raise concerns with their manager or HR as soon as they see a potential issue.
• Remind managers and HR that they should respect employee privacy and should not ask for a specific diagnosis, details of treatment, or other unnecessary medical information.

2. Establish Clear Internal Response Procedures

Developing a clear internal process for handling a crisis at work – and ensuring employees are familiar with it – can help ensure a consistent and safe response.

Additionally, it is recommended to develop a workplace violence prevention plan with procedures for responding when an employee’s conduct poses a safety risk to others. Note that:

• California requires that virtually all employers have workplace violence prevention plans, which include procedures for alerting employees of the presence, location, and nature of workplace violence emergencies.
• Otherwise, employers are expected to maintain a hazard-free workplace under the Occupational Safety and Health Act’s General Duty Clause.
• When it comes to enforcement, OSHA agencies typically look at whether an employer knew or should have known of a serious risk and failed to act. Yet employers need to balance their OSHA obligations with confidentiality concerns under disability discrimination and privacy laws.
• This underscores the benefit of engaging legal counsel early to mitigate risks in difficult situations with complex compliance considerations.

Action Items

You may want to create written procedures that outline:

• Who employees should contact internally when a crisis arises.
• When emergency services should be called.
• When crisis resources such as the 988 Suicide and Crisis Lifeline may be appropriate.
• When to call legal counsel.

You should train managers on these procedures periodically, so the appropriate protocols remain fresh in their minds if a situation arises.

3. Consider ADA and FMLA Implications

When you’re managing employee mental health, you’ll need to consider potential implications under the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and similar state laws. Key considerations include:

• Employees with mental health conditions may be entitled to a reasonable accommodation, such as leave time, additional breaks, or a modified schedule. You should engage in a back-and-forth “interactive” dialogue to identify potential reasonable accommodations.
• Certain mental health conditions may also qualify as a serious health condition under the FMLA, particularly if they involve inpatient care or ongoing medical treatment.
• Recognize that additional laws and resources may come into play, such as state leave and disability-related laws and short-term disability.

Action Items

• When an employee’s crisis affects attendance or performance, HR should evaluate whether leave or other workplace accommodation is required.
• Ensure managers know to contact HR when an employee references difficulty performing their job because of a health condition.
• When requesting medical information to support leave or accommodation, limit requests to functional limitations and anticipated restrictions, consistent with applicable federal and state law.

4. Address Unexplained Absences Thoughtfully

Unexcused no-shows and prolonged absences are often legitimate grounds for terminating employment, but they may also signal a crisis.

• Employers should maintain consistent attendance policies while allowing HR to evaluate whether to excuse such absences based on legal protections or company policy as applied.
• Employers commonly have policies that require employees to give reasonable notice regarding absences – and they may consider a three-day “no show” a voluntary separation (unless state laws require longer notice). While this is generally a permissible policy, it should also allow HR to evaluate whether FMLA leave, ADA accommodations, or other leave rights apply.

Action Items:

• Create a fair and consistent process for handling no-shows in a way that balances operational needs, legal protections, and potential health conditions.
• Work with experienced legal counsel to create balanced policies and procedures in this area.

5. Handle Substance Use Concerns with a Safety Focus

Substance use disorder may intersect with mental health conditions, and in some cases, may qualify as a disability under the ADA and equivalent state law. At the same time, employers must maintain safe workplaces and are not required to allow an employee to be impaired on the job. Therefore, substance abuse policies should distinguish between:

• Active impairment while working or on work premises
• An underlying substance use disorder
• Lawful use of prescribed medication
• Participation in treatment or recovery programs

Action Items

• You should train managers to focus on observable workplace behaviors (such as unsafe equipment operation or clear signs of impairment) rather than speculating about a medical condition.
• Managers and supervisors should know when to halt unsafe activities immediately – and know who to contact in HR or on your legal team to guide them through the process from there. Safety comes first, but it’s also important to avoid assumptions.
• Employers may also consider recovery-supportive approaches, such as allowing time off for treatment or using return-to-work agreements where appropriate, as well as legally compliant drug testing protocols.

6. Make Use of Employee Assistance Programs

Employee Assistance Programs (EAPs) can provide confidential counseling and referrals to outside services, among other resources. An effective EAP can be the foundation of an employer’s workplace mental health support system.

Action Items:

• Promote the EAP as a voluntary and confidential resource for employees and their families.
• Clearly communicate protections and limitations.
• Consult legal counsel before requiring EAP participation as part of a return-to-work agreement, since mandatory participation may raise concerns under various employment laws.

7. Protect Confidentiality But Don’t Overpromise

Confidentiality requirements apply to employee medical information, including mental health conditions. Additionally, employers should store medical information separately from personnel files.

However, to the extent an employee seeks confidentiality in raising concerns about their own or a co-worker’s condition, you don’t want to promise complete confidentiality. You may need to share critical information with appropriate internal leaders and outside resources or emergency service providers on a need-to-know basis.

Action Items

Ensure your policies and practices:

• Prohibit disclosure of an employee’s health condition to co-workers with no need to know.
• Share only necessary information, such as adjustments to tasks, assignments, and duties – or temporary coverage arrangements.
• Curb workplace gossip and maintain employee privacy.

8. Plan for Return-to-Work and Continued Support

Employees returning from mental-health-related leave often need additional support as they adjust to being back at work.

Action Items

• Review your return-to-work procedures and consider addressing fitness-for-duty certifications, modified schedules, and other accommodations when appropriate.
• Schedule check-ins during the first few weeks back to review expectations and provide support.

👉 For more tips on mental health awareness in the workplace, read the Fisher & Phillips complete guide here.

Depression Cases Surge Among Women, Younger Employees

Depression is no longer one of the top mental health issues in the workplace. However, the condition is surging among women and young workers, according to new analysis, as 38% of depression cases in the past two years were found in workers aged 20-29, while 60% of cases were found in women across all age groups.

That’s according to mental health services provider ComPsych, which analyzed a sampling of more than 80,000 depression cases from its U.S. 2022 and 2023 book of business.

Depression is now the fifth most common presenting issue in the American workforce, while anxiety has skyrocketed to the No. 1 issue nationally, according to ComPsych.

“On the one hand, it’s encouraging to see that depression has decreased in prevalence across the American workforce,” said Richard Chaifetz, founder, CEO and chairman of ComPsych. “However, our data shows that’s not the case for everyone.”

The data is the latest in a set of studies that look at how mental health issues are afflicting employees and serve as a call to action for employers. Industry experts, including Chaifetz, contend that organizations would be well served to take a hard look at their mental health benefits and resources—making sure they are robust and well utilized by employees. And women and younger employees should be an important target for extra resources.

“As business leaders look to support their workers, I’d urge them to invest strategically in the groups who are struggling the most with this issue, emphasizing resources for younger age groups and in particular, women,” Chaifetz said.

Below are some additional stories from SHRM Online about the state of mental health in the workplace.

The Workplace Often Hurts Employee Mental Health

Nearly 1 in 3 employees say their job frequently causes them stress, according to new research from SHRM.

The data, released during Mental Health Awareness Month in May, shows that 30% of 1,405 surveyed employees say their job often makes them feel stressed, 26% often feel “overwhelmed” by their job, and 22% often feel disengaged from their job.

“Negative emotions are exceptionally more salient than positive emotions, and entirely more difficult for employees to let go of,” said Daroon Jalil, a senior researcher at SHRM who led the mental health research initiative. “When employees are experiencing these negative emotions, and experiencing them often, which is the real concern, it can lead to long-term negative consequences for the employee and the organization.”

The research also found that more than 1 in 3 employees (35%) said their job has a negative effect on their mental health, although nearly as many (34%) said their job has a positive effect on their mental health.

(SHRM Online)

Anxiety Is Now the Top Mental Health Issue in the Workplace

ComPsych’s data on depression comes shortly after it released data on anxiety in the workplace.

Its recent analysis of more than 300,000 U.S. cases found that nearly a quarter of people (24 percent) who reached out to ComPsych for mental health assistance in 2023 did so to get help with anxiety. That makes anxiety the No. 1 presenting issue reported by U.S. workers, topping depression, stress, relationship issues, family issues, addiction and grief, ComPsych said.

Anxiety has risen dramatically over the years, ComPsych said. In 2017, for instance, anxiety didn’t rank in the top five presenting issues for Americans.

(SHRM Online)

Mental Health-Related Absences Up 33% in 2023

ComPsych also recently reported that mental health-related leaves of absence are surging in the workplace, up 33 percent in 2023 over 2022.

Employee leaves of absence for mental health issues are up a whopping 300 percent from 2017 to 2023. A leave of absence, ComPsych said, can vary from a few days to weeks.

Female employees and younger workers, in particular, are driving the surge. In 2023, 69 percent of mental health-related leaves of absence were taken by women. Of these, 33 percent were taken by Millennial women, followed by Generation X women, who accounted for 30 percent of mental health-related leaves.

(SHRM Online)

Tips to Improve Mental Health at Work

Although employers are making progress in mental health efforts, with more employers and employees seeking out mental health benefits, there is still much work to be done, said Colleen Marshall, chief clinical officer at Two Chairs in San Francisco.

“To have truly integrated mental health in organizations, there would be specific efforts to ensure employee wellness and mental health is a priority,” she said. “This looks different for different people and different industries. It usually includes making sure the job itself is reasonable and manageable and that employees are able to manage their mental health the same way they can manage their physical health.”

Evaluating mental health offerings, offering onsite or easy-to-access mental health professionals, giving employees paid time off to attend therapy appointments, organizing mindfulness groups in the workplace and more are some measures that can help lower barriers to mental health care, Marshall said.

Leadership should also communicate frequently and consistently that employee wellness and mental health are important to the organization, Marshall said.