off therecord











May 07, 2021

April Showers Bring

By: Marissa Cerkoney

“April showers bring May flowers.” Well unfortunately for Southwestern North Dakota, April did not bless us with many “showers,” so what can we look forward to in May if not flowers? My proposal: mental health awareness in the workplace! The month of May is nationally referred to as “Mental Health Awareness Month” and it is important for employers to get behind their employees to provide mental health support, especially considering the pandemic that is unfortunately still ongoing.

The Equal Employment Opportunity Commission (EEOC) has stated that, under the Americans with Disabilities Act (ADA) if an employee has a mental health condition, such as depression, post-traumatic stress disorder (PTSD), etc., that employee is protected against discrimination and harassment at work because of that condition. An employer may not discriminate against an employee simply because they have a mental health condition. Additionally, under the ADA, the employee has workplace privacy rights and may also have a legal right to get reasonable accommodations that can help them perform and keep their job.

As an employer, it is important to develop your workplace’s capacity to respond effectively when a mental health condition arises so that you can not only comply with legal regulations, but also ensure that you are prepared to assist your employees in a workplace that is psychologically safe. Some possible steps an employer can take are:

    1. Create an employee mental health workplace safety plan.
    2. Include employee mental health as part of your workplace health and safety initiative.
    3. Prepare a workplace mental health safety policy.
    4. Emphasize the importance of mental health in the workplace.
    5. Educate and train your managers so that they know how to approach mental health discussions, are familiar with available resources, and know how to spot workplace hazards (i.e., cyberbullying and harassment).
The Takeaway:

Employers are not responsible for providing mental health counseling or fixing an employee’s mental health issues. However, if an employee was physically injured at work, an employer generally would transport them to the hospital and provide support. Similarly, employers should be prepared to aid employees in getting the mental health resources they need and supporting employees along the way. Importantly, this should all be done in compliance with current laws and with the help of legal counsel.

Our Interest in Serving You:

My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at We promise to take your comments and ideas to heart.

(Otherwise known as “the fine print”)

I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the May, 2021 Southwest Area Human Resource Association newsletter.