Workplace Mental Health Law

Comparative Perspectives

Takenori Mishiba

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9780367347826
• eBook ISBN: 9781000076844
• Edition: 1
• Topic: Business
• Subtopic: Corporate Governance
• Index: Business

This book provides a systematic and interdisciplinary study of occupational mental health legislation in seven countries.

The work presents a study of the laws, policies, and legal interpretations to help prevent mental health problems from occurring in the workplace and appropriately address problems once they do occur. With a view to improving provision in Japan, the author examines the legal issues relating to workplace mental health and stress in the USA, UK, Denmark, the Netherlands, France and Germany.

In presenting a comparative discussion of mental health issues in the workplace, this book seeks to establish a minimum for legal rights and duties that contribute to prevention and not just compensation. With its detailed comparative and descriptive coverage of legal and related provisions in a range of countries, the book will be a valuable resource for academics, policy-makers and practitioners working in labour and employment law, social welfare, occupational health and human resource management.

1 Issues in workplace mental health law

What sort of legislation is effective, practical, and reasonable?

Mental health¹ is an international issue.² In 2001, the World Health Organization (WHO) attempted to define mental health (WHO, 2007),³ but there is currently no precise legal definition of mental health. Mental health is such a broad issue with multiple aspects and multiple layers that one could essentially relabel “mental health” as mental, physical, and social well-being and the manner in which individuals or organizations exist.⁴ Changes in the circumstances of a person’s life are typically cited when discussing the mounting evidence of mental health issues or the increased prevalence of those issues.⁵ In light of these trends, there are several mental health topics that can be addressed in the workplace to some extent. Specific examples are: 1) employee suicide, 2) loss due to employees not regularly showing up for work or failing to show up for work entirely (absenteeism),⁶ 3) loss due to decreased productivity among full-time employees (presenteeism⁷), 4) the ease with which individuals with mental health issues can be refused employment or terminated⁸ as well as the burden on other workers when an individual continues to work, even if he/she should be suspended from his/her job, 5) diminishing organizational commitment,⁹ and 6) a dearth of (or a decline in) verbal and non-verbal communication in the workplace¹⁰ either as a cause or as a result of problems 1) through 5). All of these problems can affect human resources, personnel management, and an organization’s management structure and can lead directly or indirectly to legal issues.

Once mental health problems in the workplace involve civil considerations, a duty of care, or the certification of a work-related illness or other issues covered by the Industrial Safety and Health Act, topics related to human resources, personnel management, and an organization’s management structure inevitably become legal issues. For the most part, labor case law in Japan provides employers with a great deal of latitude regarding general personnel matters such as job assignments¹¹ and employee performance evaluations,¹² but employers tend to be subject to strict standards regarding employee termination¹³ and health and safety.¹⁴ Awareness of mental health issues has blurred the distinction between those matters – general personnel matters – and matters that are subject to labor standards.

In the Otafuku Sauce case (Otafuku Sauce, 1035 Hanrei Times [Case Law Times], 285 (2000)),¹⁵ a veteran employee who was leading a team responsible for a manufacturing process was the cause of a violent episode resulting in his transfer. This placed an excessive burden on the employee’s subordinates, resulting in the death of one of the subordinates. The court clearly delineated why and how the violent incident occurred at work. (The veteran employee was irritated by the new employees’ lack of ability). The court held that the employer had a duty to take steps such as removing poorly performing personnel from the department in question as part of its duty to prevent employees from being subjected to mental or physical risks or health problems. In the Fukoku Life Insurance et al. case (Fukoku Life Insurance, 996 Labor Case Law, 28 (2009))¹⁶ a female employee was promoted to lead a team of approximately ten subordinates. However, her new boss did not approve of her job performance. Ignoring precedent, the new boss took steps to cut the number of her team members by half, which the court found was “an illegal act that caused excessive mental stress.” Subsequent court decisions related to mental health have upheld this tendency to intervene in an organization’s personnel actions (Mishiba, 2011, p. 350ff). An Assessment Form for Assessing Mental Stress Due to Work (see Appendix) was appended to the current criteria for a workers’ compensation claim involving a mental disorder.¹⁷ These criteria for certification of a mental disorder are predicated on the diathesis-stress model in which mental illness occurs as a result of a combination of intense stress and an individual’s vulnerability to stress. If an employee experiences objectively stressful events at work that could cause a mental illness to develop (regardless of the individual’s stress tolerance) and those events are found to be the primary cause of a mental illness, then the mental illness is recognized as being work-related. Courts are not bound by government criteria for a workers’ compensation claim. Instead, they tend to rule that a broad range of mental disorders are work-related based on those criteria. The assessment form substantively addresses a number of topics related to human resources and personnel management. In addition, Paragraph 1 of Article 66–5, Paragraph 5 of Article 66–8, and Paragraph 6 of Article 66–10 of the Industrial Safety and Health Act stipulate that an employer must make employee accommodations in response to recommendations from a physician. These provisions are also closely related to human resources and personnel management.¹⁸

In the US, some state laws stipulate that workers’ compensation does not cover mental illness caused by actions involving authentic personnel matters.¹⁹ In France, a Tribunal de Grande Instance (TGI Versailles, 21 novembre 2006, N°06/01176, cited in Guedes da Costa & Lafuma, 2010, p. 423) ruled in 2006 that not all business plans must be on the agenda of the health, safety, and working conditions committee [comité d’hygiéne, de sécurité et des conditions de travail (CHSCT)], despite employee concerns. However, these trends are not yet evident in Japan – nonetheless, in one case an employer was held liable for civil damages for only illegal stress (NTT East, Hokkaido Branch case (referred to an appellate court), Sapporo High Ct., January 30, 2009, Labor Case Law, no. 976, p. 5) and in another an employer was considered to have limited ability to foresee that an employee would develop a mental health issue (Rissho Kosei Kai case, Tokyo High Ct., October 22, 2008, Bulletin of Labor Economics Case Law, no. 2023, p. 7 (the suit brought by plaintiffs of the first trial was dismissed with prejudice on the merits [outcome unknown]). For details, see Chapter 4.6.2.2).

Trends in domestic laws, policies²⁰ and court decisions mentioned earlier and domestic and foreign research on organizational health²¹ suggest that basic components of human resources and personnel management should be re-configured. Such components include: i) personnel selection, e.g. hiring and job assignments, ii) training, iii) motivation, and iv) job design in relation to the type of work.²² In addition, legislative assistance may be needed to create a system to eliminate both vertical and horizontal miscommunication in an organization,²³ and to create a system in which workers receive support from supervisors and colleagues in response to abrupt changes in working conditions. Other items such as ensuring personal time (a daily rest period) between workdays or shifts (in Japan, such a period is not legally mandated for typical employees²⁴) and preventing malicious harassment based on prejudice should be mandated as minimum standards after careful consideration of what they entail.²⁵ Rather than mandated standards, these items could be interpreted as implied contractual obligations. Such a stance would avoid the bringing of frivolous lawsuits (cases) and allow the court to make a flexible legal determination in light of particular circumstances.

Legal theories need to be formulated to address an individual who has mental health issues due to reasons other than work. These need to be based on the severity of symptoms (and particularly dysfunction), the degree (or lack) of “caseness” (the effect an illness or disorder has on an individual’s capacity to work or its effect on order in the workplace), and the degree (or lack) of personality or developmental issues. The legality of dismissal, or in some cases resignation, and the procedures that should be followed beforehand (e.g. having a specialist determine an individual’s potential to recover and return to work, potential considerations to allow an individual to return to work, and training and instruction) can then be determined.

An employee with personality or developmental issues may be forced to take a prolonged leave of absence or leave his or her job. Although a return to work is typically difficult, these individuals need legal support so that they can rest, grow, and adapt to the workplace.²⁶

Notes

1 An important previous study of occupational mental health and the law is Lerouge (2017b). In contrast to that work, the current work is oriented to problem-solving (examining laws, policies, and legal interpretations to both prevent mental health issues from occurring and to properly resolve them if they occur). To that end, the current work is oriented toward a “substantive dialogue” between occupational health and the law (e.g. categorizing legislation in various countries based on theories of prevention and endeavoring to identify elements of legislation that can improve health). This work uses the term “mental health” instead of “psychosocial risk” because it focuses on improving organizational management and providing support for individual growth and adjustment from a problem-solving perspective rather than simply managing risk. The basis of this work is an interim report on scientific research for the Ministry of Health, Labor, and Welfare. That report was presented in Japanese in Mishiba (2013) and Mishiba (2014c).

2 This is described in detail in Lerouge (2017a).

3 According to the Fact sheet, “Mental health is a state of well-being in which an individual realizes his or her own abilities, can cope with the normal stresses of life, can work productively and is able to make a contribution to his or her community.”

4 The current author views the promotion of mental health as “actions taken through comprehensive approaches involving individuals, organizations, and society at large to resolve problems due to excessive physical or mental stress that can lead to limitations in work and everyday life, regardless of whether or not those problems lead to a mental illness or disorder.” In this sense, mental health issues can be considered a labor productivity issue. However, desired mental health (≒ productivity) itself should be determined through a dialogue among the relevant parties, such as the employer, occupational health personnel, family members, medical facilities, and rehabilitation facilities, with the utmost priority given to the wishes of the individual.

5 One such source is the European Agency for Safety and Health at Work (2009). Occupational stress factors were identified by experts, which that report then organizes into the following five categories: 1) New forms of employment contracts and job insecurity; 2) the OSH risks for the aging workforce; 3) work intensification, high workload, and work pressure; 4) high emotional demands at work, violence, and harassment; and 5) poor work-life balance. Another well-known factor for mental health issues is societal conditions since countries with a high suicide rate are often undergoing a transition or experiencing continued internal turmoil (WHO, 2014).

6 The current author previously conducted a domestic social survey of supervisors of human resources and personnel management in companies and occupational health personnel (Mishiba, 2014b). Subjects were asked what index was appropriate at gauging the effectiveness of efforts to promote mental health, and the most frequent response by far (51.5%) was employee absenteeism (Mishiba, 2014b, p. 664). The results of that survey are described in further detail in Chapter 4.5 but will be referred to in this and subsequent chapters as appropriate.

7 This term was first used in Auren (1955). The subsequent spread of that term in Japan and overseas is described in Yamashita & Arakida (2006). Presenteeism is an important concept in occupational medicine as well as organizational theory. A study indicating indices of presenteeism from the latter perspective is Johns (2010).

8 This is a particularly serious problem in small and medium-sized companies. A 2012 domestic survey of employee health by the Ministry of Health, Labor, and Welfare (Ministry of Health, Labor and Welfare, 2014) asked companies about employees who returned to work after being continuously absent for a month or longer or who resigned because of mental health issues. According to the survey, over 90% of companies with 1,000 or more employees had employees with mental health issues who subsequently returned to work. In contrast, only about 40% of c...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgements
• Preface
• 1 Issues in workplace mental health law
• 2 The legal situation in Japan
• 3 A comparative study of mental health law
• 4 Comparisons with Japan
• 5 Key findings and implications for workplace mental health
• 6 Conclusion
• Appendix
• Index