Work-related mental health issues had come to fore when the COVID-19 pandemic hit us, and in the years after as we were coming out of it.
As early as 2018 however, the Philippines enacted Republic Act No. 11036 or the “Mental Health Act” (MHA). Section 25 of the MHA directs employers to develop “Mental Health Promotion and Policies in the Workplace.” Department of Labor and Employment (DoLE) Department Order No. 208, Series of 2020 provides Guidelines for the Implementation of Mental Health Workplace Policies and Programs for the Private Sector, which applies to all workplaces and establishments in the formal sector including those deploying overseas Filipino workers (OFWs).
The Guidelines emphasize that it is mandatory for all workplaces to formulate a Mental Health Workplace Policy and Program aimed at raising awareness, preventing stigma and discrimination, providing support to workers who are at risk or with mental health conditions, and facilitating access to medical health services, as well as promoting workers’ well-being towards healthy and productive lives.
This shall be jointly prepared by management and workers’ representatives and be made an integral part of the company’s occupational safety and health (OSH) policies and programs. In organized establishments, this may be included as part of the Collective Bargaining Agreement (CBA) and shall be made known to all workers.
Implementation strategies for employers include advocacy, information, education, and training activities. All workers shall be provided with standard basic information and education on mental health, which shall include, but not limited to, understanding mental health and its impact in the workplace and the workforce, identification and management of mental health problems in the workplace, the salient features of RA 11036 and its IRR, and confidentiality of all information or medical records of a worker with mental health condition.
Employers shall be responsible for the promotion and enhancement of workers’ well-being through:
- Increasing workers’ awareness on mental health and other common conditions like depression, anxiety, and substance abuse including alcohol;
- Promotion of a healthy lifestyle and work-life balance;
- Identification and management of work-related stress and stressors, including interpersonal issues with superiors, subordinates, co-employees, clients, and customers;
- Effective management of changes in the work organization and the utilization of human resources systems;
- Establishing mental health programs to support workers;
- Workers’ achievements and efforts recognition program;
- Psychosocial support in management of disaster and extreme life events;
- Capacity building of managers and human resource personnel in the identification and management of workers with mental health problems; and,
- Other programs and activities as may be recommended by the OSH committee deemed necessary to promote and sustain the well-being of the workers.
In developing the Mental Health Workplace Policy and Program, there shall be no discrimination against workers who are at risk of developing or who are found to have mental health condition. Workers shall not be discriminated against in hiring, promotion, or other benefits of employment because of their condition if this does not interfere with the performance of their job or unduly affect their own safety or that of their co-workers, clients and the general public. A worker shall not be terminated on the basis of actual, perceived or suspected mental health condition unless it progresses to such severity that it affects his/her own safety or of his/her co-workers and work performance and productivity.
Access to personal data relating to a worker’s mental health condition shall be bound by the rules of confidentiality or the Data Privacy Act of 2012. Workers are encouraged to disclose their medical or mental health condition for purposes of reasonable accommodation. However, employers and co-workers shall not be obliged to reveal to a third party any information about the worker with mental health condition except in any of the following conditions:
Unless it is required by law;
- With consent from the worker with the mental health condition;
- Life threatening emergency cases where such disclosure is necessary to prevent harm or injury to himself/herself or to other persons; or
- Disclosure is required in connection with an administrative, civil, or criminal case against a mental health professional or worker for negligence or a breach of professional ethics.
Agreements on work accommodation and work arrangements for a worker with a mental health condition shall be made between management and workers’ representatives, provided however that such a condition shall not prevent the worker from performing the requirements of the job or will endanger their safety, or that of their co-workers, clients, or the general public.
Measures to accommodate and support a worker with mental health conditions, such as flexible leave arrangements, rescheduling of working hours, and arrangements or return to work must be clearly explained to the worker, preferably in the presence of a family member.
Mental Health Workplace Policies and Programs shall include capacity for treatment or referral procedures for treatment modalities and rehabilitation to be provided by the employer through the company’s workers assistance program or any other program that will provide access to mental health services. Workers with a mental health condition shall be referred to a Department of Health-licensed/accredited/recognized mental health facility or mental health service provider for appropriate management.
The absence of workers undergoing treatment and rehabilitation shall be charged against their leave credits or they may utilize other regulated leaves like Victims of Violence Against Women and their Children (VAWC) leave, if applicable, without prejudice to the existing company policies on the availment of leave. If a worker with a mental health condition has exhausted their leave credits, then the medical leave incurred shall be without pay.
The Occupational Health and Safety Officer or HR personnel shall facilitate the referral of a worker who is at risk of or with a mental health condition for medical evaluation and/or intervention. Access to counseling shall be included in the company health policy and services. A counselor trained and qualified to provide mental health services may be tapped by employers for the counseling of workers with mental health issues or for counseling services which may be extended to the families and groups who are dealing with workers with mental health issues.
Section 44 of the MHA penalizes any person who fails to secure informed consent of the service user unless excepted; violates confidentiality of information; discriminates against a person with a mental-health condition; and administers inhumane, cruel, degrading, or harmful treatment not based on medical or scientific evidence, with imprisonment of not less than six months, but not more than two years, or a fine of not less than P10,000, but not more than P200,000, or both, at the discretion of the court. If the violation is committed by a juridical person, the penalty shall be imposed on the directors, officers, employees, or other officials or persons therein responsible for the offense. If the violation is committed by an alien, the alien offender shall be immediately deported after service of their sentence without need of further proceedings. These penalties shall be without prejudice to the administrative or civil liability of the offender, or the facility where such violation occurred.
Thus, for workplaces and establishments that have yet to develop the same, it is high time that they formulate a Mental Health Workplace Policy and Program for legal compliance.
This article was first published by BusinessWorld at bworldonline.com. It is only for general informational and educational purposes and is not offered as and does not constitute legal advice or opinion.
Atty. John Frederick E. Derije is a Senior Associate of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW), Davao Branch.
[email protected]
(6382) 224-0996