At a recent Florida Bar Association meeting, labor and employment attorneys pointed out to attendees that the workplace landscape has changed significantly over the past several years, particularly regarding mental health issues.

With that in mind, the speakers discussed some best practices that HR professionals should keep in mind as they head into the new year. These practices are not unfamiliar in themselves; the key is ensuring they are properly applied to the current context.

1. Identify available options

According to the National Alliance on Mental Illness, one in five U.S. adults experiences mental illness each year. Stephanie Marchman, a shareholder at GrayRobinson, reminded attendees of this statistic at the start of her presentation. Marchman later told HR Dive in an email, "Given the prevalence of mental health issues in the population, we often encounter employees who need FMLA leave, reasonable accommodations, or Employee Assistance Program (EAP) assistance due to mental illness."

Marchman explained that HR departments and frontline managers must know how to handle such issues, "because it affects both productivity and the employer's concern for employee well-being."

She emphasized to attendees that when issues arise, HR should carefully consider the next steps. That is, employers must balance individual rights against the rights of other employees. If an employee does not pose a direct threat and the employer acts too quickly, it may incur liability; conversely, if it does not act quickly enough, it may also face legal risk.

Marchman noted that significant behavioral changes, such as mood swings or angry outbursts, can serve as indicators. HR can then evaluate various options, including arranging for the employee to undergo afitness-for-duty exam. According to Equal Employment Opportunity Commission (EEOC) guidance, under the Americans with Disabilities Act (ADA), such exams "may only be conducted when there is objective evidence reasonably suggesting that an employee may be unable to perform essential job functions or may pose a direct threat due to a medical condition."

Marchman provided a hypothetical scenario: an employee takes leave after their mother's death, and upon returning, rumors circulate that they took leave due to depression. A coworker reports to HR that they heard from others that the employee was talking to themselves and threatening to harm others. The coworker did not witness this behavior firsthand but expressed concern for their own safety.

In that hypothetical scenario, HR conducted an investigation, but no one could confirm that the employee made such statements, and their manager reported satisfactory job performance. Marchman explained that under EEOC rules, because the coworker's information was based on hearsay and could not be verified, HR could not require the employee to undergo a fitness-for-duty exam. However, Marchman noted that HR could speak with the employee to check on their status (but not discuss their health condition or possible disability) and remind them of available resources, including the EAP.

2. Do not rush the interactive process

Brian L. Hayden, an attorney at Jackson Lewis, presented another hypothetical scenario: how should HR respond if an employee requests remote work because they believe a coworker is exacerbating their mental health issues?

Hayden's handout explained that changing the work environment due to a health condition can constitute a reasonable accommodation. He suggested to attendees that in this scenario, if HR determines that remote work is not feasible but there is a vacant office available, it could propose that the employee work in that space.

Hayden noted that once an employee makes an accommodation request, the interactive process is central. That process may take longer than expected, but HR should not rush it.

Hayden said in an email to HR Dive that if HR suspects the employee's request is not genuine, it should not reveal that doubt to the employee. Instead, HR should ask the employee to provide medical documentation to support the necessity of the accommodation request and to demonstrate that the accommodation would enable them to perform the essential functions of the job.

3. Ensure supervisors and managers are adequately trained

Hayden stressed that it is extremely important for supervisors and managers to know how to recognize ADA reasonable accommodation requests and Family and Medical Leave Act (FMLA) leave requests. He explained in an email, "Managers are on the front lines; if issues are not caught early, they often take root and worsen there." Hayden wrote that training should include how to identify potential issues even when employees do not use terms like "ADA," "FMLA," or "reasonable accommodation."

He added that remote work does not change this analysis, but it may require more effort to stay closely connected and in sync with employees' conditions.

Marchman told HR Dive that the same applies to identifying mental health issues. She noted that supervisors should conduct regular check-ins with remote employees because they may have less interaction with them than they would in the office.

Marchman said supervisors should also watch for the same signs they would look for during in-person interactions. In addition to changes in behavior and demeanor, they should watch for declines in productivity and performance issues. Hayden added that supervisors should also be alert to statements where employees attribute poor performance to depression or anxiety, as well as comments referencing related treatment.

4. Be diligent about documentation

Alison F. Smith, a partner at Weiss Serota Helfman Cole and Bierman, emphasized in her presentation that employers need to maintain clear, up-to-date, and easily accessible policies—ideally included in the employee handbook.

Hayden noted that, with respect to the ADA, job descriptions must also be kept current so that employees know the essential functions of the job, and so that employers have documentation to support their position if an employee fails to perform those functions.

Smith told HR Dive that diligent documentation is another essential task for HR. Smith said that both misconduct and the employer's responses must be documented. She also recommended documenting verbal warnings, as they are the first step toward progressive discipline and can undermine an employee's claim of unfair or overly harsh treatment.

Smith added that for supervisors who dislike documentation, the most persuasive approach for HR is to provide concrete examples illustrating its importance. HR can also emphasize that, as representatives of the company, supervisors may face personal liability, receive subpoenas, or be called to testify. She said, "That usually gets their attention."

5. Understand the potential risks

One attendee said it is crucial for HR professionals to understand and communicate the risks at stake. Barbara Hitzemann, HR director for Pasco County, Florida, attended law school and said that while it has not changed how she views her HR work, "it certainly adds a lot of credibility when I'm arguing or discussing with opposing counsel," she wrote in an email interview with HR Dive.

She stressed, "I do think it's critical to understand where the real risks are." That means understanding which actions could lead to litigation and which will not, enabling HR to make better decisions for the organization. Hitzemann noted that one of the biggest mistakes HR professionals make is failing to recognize that "it is perfectly legal to treat employees differently based on job performance, behavior, etc."—and failing to implement policies that allow for that.