Preetha Soman
Nishith Desai Associates, Mumbai
preetha.s@nishithdesai.com

Vikram Shroff
Nishith Desai Associates, Mumbai
vikram.shroff@nishithdesai.com   

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The Covid-19 pandemic and the resultant hybrid model of working have led to a surge in mental health issues amongst employees worldwide. History suggests that mental health suffers a huge set-back after every pandemic. People around the world have been experiencing increased worry, anxiety, rage and bewilderment, besides post-traumatic stress disorders. Changes in the work pattern, poor working conditions, conflicting home and work demands, loss of employment and other circumstances, such as losing loved ones in the pandemic, fear of financial instability and the like, have enhanced the mental health crisis this time around.

According to the World Health Organization, a fast-developing country like India is expected to lose a whopping $1.03tn in economic value due to mental health issues between 2012 and 2030.¹ In the Indian context, mental health problems unfortunately continue to remain a taboo with shame, prejudice or discrimination attached to them. Studies indicate that a vast section of Indians continue to use language associated with stigma and discrimination when describing mental disorders.

A natural outcome of the pandemic for employers has been the shift to a remote-working model. While some employees have been enjoying the freedom associated with working at home and saving travel time, the isolation and loss of social support has led to stress, anxiety and mental issues for others. While the workplace can contribute positively to a person’s mental health, it also has the potential to aggravate an existing problem, or contribute to the development of a new mental health condition. The failure to prevent, recognise and treat mental health problems in the workplace could lead to reduced productivity, reduced profits, increased absenteeism and indirect costs for the employer.

In fact, the relationship between mental health and the workplace is bi-directional, as work affects a person’s mental health, and an employee’s mental health in turn affects the overall morale at work. Therefore, tackling mental health issues has become a top workforce-health concern for employers, making it imperative for them to take a holistic and systematic approach to address the elephant in the room.

Employer obligations on mental wellness – Indian legal perspective

Apart from an employer’s general duty of care towards its employees and the health and safety related obligations under Indian labour laws, as such there are no specific legal obligations upon an employer in terms of ensuring an employee’s ‘mental’ wellness in the employment context.

‘Mental illness’ is, however, one of the specified categories of disabilities under the new Rights of Persons with Disabilities Act 2017 (RPDA). ‘Mental illness’ as per the RPDA means:

‘[A] substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, but does not include retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by sub-normality of intelligence.’

Possibly some of the most important requirements for employers under the RPDA are the obligations to prohibit discrimination against such individuals, investigating complaints of discrimination and taking necessary actions. ‘Discrimination’ as per the RPDA means any distinction, exclusion, restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field and includes all forms of discrimination and denial of reasonable accommodation. The RPDA also requires employers to provide reasonable accommodations and assistance to such individuals.

India has enacted a new law called the Mental Healthcare Act 2017 (MHA). The objective of the MHA is to reinforce the rights of persons with mental illnesses. It predominantly stipulates the obligations and regulations for mental health care establishments treating such persons. The law also lays down the rights of persons with mental illnesses. As per the MHA, every person with a mental illness has, among others, the right to dignity, privacy, to be a part of society and not to be segregated from society, to be treated equally to persons with physical illness in all provisions of healthcare, the right to be protected from all forms of physical, emotional and sexual abuse, etc. The MHA also emphasises the right to confidentiality of persons with mental illnesses. Although this law is not specific to employment, since mental health is becoming a growing concern the world over, employers need to bear in mind this law’s principles.

Employer initiatives for employee wellness

During the second fatal Covid-19 wave, with life-saving medicines, oxygen and other essentials running out of availability and individuals struggling to find hospital beds, India Inc. rolled up its sleeves and displayed its compassionate side in numerous ways. Whether it be helping employees with hospitalisation and treatment costs, or setting up Covid-19 care centres, or facilitating vaccination drives, most employers went the extra mile to take care of not just their employees but their families too. In the same spirit, employers have been taking various strategic and innovative steps to promote health and wellness of their employees, given the unique challenges thrown open by the pandemic. In fact, several employers have gone all out to help employees deal with the challenges of work during Covid-19.² Some of those initiatives include mental health care programmes, counselling, therapy sessions, employee assistance programmes, virtual yoga and fitness sessions, or stress management courses, personal connect programmes and so on, catering to a variety of wellness aspects. For example, Genpact organised a series of webinars ranging from music therapy to arts sessions on parenting through Covid-19, to help employees cope with anxiety and stress.³ Similarly, Comviva tied up with ‘YourDost’ to extend its Counselling Support Programme, thereby enabling employees to speak with psychologists and other experts anonymously on any kind of emotional and mental issues.⁴

Some employers have also been conducting regular surveys to gauge employee happiness, whereas others have been providing wellness days off in addition to other paid time off, or have adopted unlimited sick leave policies. Recently, Meesho, a social e-commerce platform, has gone on a company-wide break in line with its Recharge and Reset Policy, enabling employees to completely switch off from work during that period.⁵ Likewise, Godrej Properties allowed its employees a five-day complete break from work to allow its team to recuperate emotionally.⁶ While Mphasis is conducting music therapy sessions, Compass India Development Centre is using music as a de-stressing tool. It has introduced an ‘Art for Heart’ initiative, wherein employees curate and offer their art pieces and participate in an in-house auction. ITC has strengthened existing interventions and facilitated a series of engagements between experts and employees and their families on mental well-being, focusing on resilience, countering fatigue and managing grief.⁷

Hospitality firm, Oyo, has rolled out a set of initiatives for its employees, including a four-day working week and flexible infinite paid leave. The online food tech unicorn, Swiggy, has also announced that it will be moving to a four-day working week.⁸ InMobi rolled out a 21-day ‘no-questions-asked leave’ which employees could avail themselves of anytime during the year, just to switch off and recoup. Similarly, Zest Money announced a no-questions-asked, unlimited sick-leave policy for all employees. Microsoft renamed its sick-leave policy to ‘sick and mental health leave’, which resulted in a tremendous uptick in such leave being taken. It also partnered with Happify to provide employees access to fun, individualised and science-based activities and games to reduce stress, deal with anxiety and improve resilience. Tech Mahindra introduced a ‘Mind Plan’, a mental health initiative to provide daily doses of mindful tips and exercises to employees.⁹

Accenture India upgraded its medical insurance policy to include mental health consultancy reimbursements for its dependent family members. It also organised virtual sessions by comedians and leading psychiatrists to raise awareness about mental health. L’Oreal uses ‘Wysa’, an emotionally intelligent chatbot to offer round-the-clock assistance on mental well-being and has introduced the concepts of Healing Day Off and Healing Week, to lift employee spirits. Cisco introduced a ‘Day for me’ initiative, enabling employees to unplug and recharge themselves. Byjus, the ed-tech platform, aligned with an app to provide unlimited free doctor consultations, fitness sessions and mindfulness sessions.¹⁰ Some employers have also invested in training to equip employees with tools to support each other, while others have invested in digital wellness apps, which include subscriptions to mindfulness and medication tools, besides other personalised mental and physical well-being solutions.

Thanks to technological advances, a variety of options for workplace wellness are now available and we expect more to arise with the increase in awareness and cases relating to mental health issues at the workplace.

Conclusion

Employee well-being plays a critical role in, among others, achieving workforce fulfilment, productivity and inclusion. Businesses, therefore, need to foster a work culture where employees do not just survive, but can thrive and flourish to their fullest. Organisations that prioritise employee wellness are expected to have better employee retention abilities and the potential for long-term growth and development.

While there are many steps that organisations may take to bring the best out of their employees and keep them motivated, especially during such challenging times, workplace mental health best practices should be integrated into all elements of an employer’s operating model: policies, practices, training, organisational culture or philosophy. Employers can take multiple steps in this direction by starting with building an inclusive culture and fostering workplace connectivity, to encouraging dialogue and creating awareness. By talking about mental health and backing that up with significant action, it should be possible to de-stigmatise mental illnesses and reinforce employees’ belief in availability of access to company-provided support, if required.

It is also essential for employers to ensure confidentiality and privacy and introduce a strict policy of non-discrimination, not just in line with the legal obligations under the MHA and RPDA, but as best practices. Employers should also re-consider their health insurance plans in order to ensure that such plans take care of mental illnesses of employees, just as much as their physical health. For example, how many health service providers cover treatments relating to psychiatric and psychosomatic disorders?

Although there may be an end to the pandemic in the foreseeable future, the workforce will continue to struggle with the aftermath of its outbreak. Therefore, mental health should be a key priority for employers in their return-to-work strategy. In the post-pandemic world, the successful organisations and businesses will perhaps be those that maintain such initiatives and look out proactively for ways to ensure that their employees receive the best support for their mental health and wellbeing, while constantly working together to diminish the stigma associated with mental health issues.

Unlike how it used to be traditionally, workforce 2.0 expects employers to take the mental health of its employees seriously and provide appropriate support and assistance. Therefore, one should not be surprised if the availability of mental health resources becomes an important checklist item for employees when they decide on whether to choose or stay with an employer. If employers intervene in the workplace in ways that improve the well-being of their employees, a real, sustainable change is bound to happen. Needless to say, organisations will play a crucial role in our society’s overall mental well-being, given that much of our time and energy is spent at the workplace.

1 Neerja Birla, ‘Mental health may hurt India to tune of $1.03 trillion; here's a dose for cos’, The Economic Times (9 September 2019): at indiatimes.com.

2 Ibid.

3 See https://economictimes.indiatimes.com/news/company/corporate-trends/post-pandemic-cos-have-more-than-pl-on-their-mind/articleshow/86130311.cms?from=mdr.

4 See www.voicendata.com/sharp-increase-in-burnout-among-wfh-techies-get-hrs-to-tackle-stress-with-fun-virtual-engagement-programs.

5 See n 3 above.

6 See www.indiantelevision.com/mam/marketing/mam/india-inc-has-no-deal-with-covid-stress-on-working-minds-210531.

7 Ibid.

8 See n 6 above.

9 See https://m.economictimes.com/news/company/corporate-trends/world-mental-health-day-india-inc-hastens-plans-to-protect-mental-well-being-of-employees/articleshow/86898516.cms.

10 Ibid.