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    June 20, 2023 Construction

    We Need to Talk about it in the Workplace: Mental Health in the Construction Industry

    Matthew Meaker and Helen Holden

    The conversation about mental health is seemingly everywhere. Publications like the New York Times and the Harvard Business Review have recently featured the topic, and the blogosphere and podcasting worlds are similarly awash with opportunities to engage on the topic.

    There is good reason for the explosion of mental-health related information. Statistics about the prevalence of mental health conditions in the United States abound. According to one study, 46% of Americans will meet the criteria for a diagnosable mental health condition sometime in their adult life. These conditions range from mood disorders, such as bipolar disorder or chronic mild depression, to anxiety disorders, and to neurological disorders such as autism or attention deficit hyperactivity disorder.

    Many individuals with severe mental health issues do not work, but most with milder or even moderate cases are employed. One recent study found that 76% of employed individuals stated they experienced at least one symptom of a mental health condition in the past year.

    The construction industry is not immune to these trends, and, in fact, multiple studies in recent years have concluded that the rate of mental health concerns among those employed in the construction industry is high. Among the more alarming statistics is that individuals working in construction have a suicide rate that is four times greater than in the general population, and workers in the industry are 6 to 7 times more likely to die of an opioid overdose than workers in other groups.

    Against this background, there remains an impression in the workplace, including in the construction industry, that mental health is a topic like religion or politics: it is best to be kept out of the workplace. After all, the Americans with Disabilities Act (the “ADA”) requires employers to maintain employee health information, including information about mental health, as confidential. Further compounding the issue is the breadth of the definition of a mental disability under the ADA, which is a “mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(A). The ADA regulations further define a mental impairment as “any mental or psychological disorder, such as intellectual disability . . ., organic brain syndrome, emotion or mental illness, and specific learning disabilities.” 29 C.F.R. § 1630.2(h)(2). Isn’t it best, given the broad scope of the statutory definitions and confidentiality obligations, to avoid the topic?

    The short answer to this question is very simple: “no, it is not.” Though it is true that the ADA requires that employers maintain health information, including mental health information, as confidential, nothing in the ADA limits the discussion of topics relating to health and wellness in the workplace, and this includes mental health and wellness.

    Instead of shutting down conversation, employers should find opportunities to engage with employees on the topic. For example, the team of employee owners at Sundt Construction, Inc. has found ways to focus on the issue in a compliant and compassionate way. Beginning with education, Sundt is providing suicide prevention training from Construction Working Minds to front line focused team members. The Sundt teams have also focused on learning to talk about difficult issues in the workplace, and on providing resources to employees through the company EAP plan, as well as other resources. The teams have found success, with employees much more freely discussing the topic as part of the company’s initiative.

    Proactive measures such as those Sundt has utilized may be very effective at reducing the number of issues that come to the attention of human resources and legal teams.

    Pro Tips to Avoid Litigation

    • Preventive measures and awareness are critical to successfully navigating mental health concerns in the workplace. When issues do arise, however, our role as legal counsellors and advisors is to assist management and human resources to address the issues so that litigation can be avoided. A few simple proactive measures include the following:
    • Employers must provide accommodations that allow employees with mental disabilities to access the workplace as well as accommodations that allow employees to perform other essential functions of the position. For example, one recent case involved an employee with a mental health condition who was traumatized by having to use revolving doors to enter and leave work. The employer, a health plan, declined the employee’s request to use non-revolving doors. The employer argued that the employee was entitled to a reasonable accommodation to perform the essential functions of the position, and the ADA did not extend to an accommodation to enter or leave the workplace. The court in this matter stated that employer was required to provide “accommodations that enable an employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.” Equal Employment Opportunity Comm'n v. Kaiser Found. Health Plan of Georgia, Inc., 1:19-CV-05484-AT-WEJ, 2021 WL 2547068, at *20 (N.D. Ga. Apr. 19, 2021), report and recommendation adopted, 1:19-CV-5484-AT, 2021 WL 3508533 (N.D. Ga. Aug. 9, 2021).
    • A focus on conduct and the essential functions of the position will help employers as they proceed through the interactive process. Courts have long recognized the distinction between taking adverse again against an employee because of misconduct, and taking adverse action against the employee because of a disability. See, e.g., Newland v. Dalton, 81 F.3d 904 (9th Cir. 1996). Accordingly, a focus on conduct will assist in navigating issues when they arise.
    • Employees who require leave for mental disabilities may be eligible for multiple forms of protected leave, including leave under the Family and Medical Leave Act and similar state laws, and leave under state and local paid sick leave laws. The Department of Labor has recently published resources for employers involving mental health conditions and the Family and Medical Leave Act, found here: https://www.dol.gov/agencies/whd/fmla/mental-health. The DOL resource notes that employees may also need leave for mental health conditions of their family members. Similarly, leave to care for a family member with a mental health condition may be protected leave under state and local family leave laws, and state and local paid sick leave laws.

    Conclusion

    Mental health is a topic of a great deal of recent discussion and media attention, and rightly so. Mental health concerns are increasingly common, and are prevalent in all walks of life, and those who work in the construction industry have a high rate of mental health concerns. As a result, construction companies should foster conversation about the topic. Employers in the industry should also be mindful of the legal implications of those conversations, and, when issues do arise, be prepared to manage them in a compliant manner. 

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    Matthew Meaker

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    Helen Holden

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