Mental health, mandatory policy

1. Preliminary

DOLE Department Order No. 53, Series of 2003 (“DO-53”) provides for the Drug-Free Workplace Policies and Programs Guidelines for the Implementation of a Drug-Free Workplace Polices and Programs for the Private Sector (the “Guidelines”)

DOLE Department Order No. 208, Series of 2020 (“DO-208”)provides for the Guidelines for the Implementation of Mental Health Workplace Policies and Programs for the Private Sector (the “Guidelines”).

2. Scope and coverage

[The Guidelines] apply to all workplaces and establishments in the formal sector including those which deploy Overseas Filipino Workers (OFWs). (Section 2, DOLE Department Order No. 53, Series of 2003)

The Department of Labor and Employment (DOLE) shall likewise formulate policy guidelines that will integrate the promotion of mental health and the identification and management of mental health problems, including provision of assistance to OFWs and other Filipinos overseas who are at risk or with mental health problems in accordance with the existing health related rules and regulations in providing assistance to OFWs and their families. (Paragraph 2, Section 2, Ibid.)

3. Formulation of mental health policy and program

It is mandatory for all workplaces and establishments to formulate a Mental Health Workplace Policy and Program, which shall include the following:

1) Raise awareness, prevent stigma and discrimination, provide support to workers who are at risk and/or with mental health condition and facilitate access to medical health services.

2) Promote workers’ well-being towards healthy and productive lives.

3) 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, the workplace policies and programs may be included as part of the collective bargaining agreement (CBA) and shall be made known to all workers. (Section 3[A], Ibid.)

The Mental Health Workplace Policy and Program shall be properly coordinated, monitored and regularly reviewed and updated as necessary for its effective implementation. Assistance in the formulation and implementation of Mental Health Workplace Policies and Programs may be sought from Department of Labor and Employment (DOLE), Department of Health (DOH) and/or organizations rendering mental health services such as the Psychological Association of the Philippines (PAP), Philippine Psychiatric Association (PPA), Philippine Neurological Association (PNA), Philippine Guidance & Counselling Association (PGCA), Philippine Mental Health Association (PMHA) and other organizations. (Section 3[B], Ibid.)

4. Components and implementation strategies of the mental health workplace policy and program:

a. Advocacy, information, education, and training

1) All workers shall be provided with basic information and education on mental health. Standard basic information and education shall include, but not limited to, the following:

(a) Understanding mental health and its impact in the workplace and the workforce;

(b) Identification and management of mental health problems in the workplace;

(c) Salient features of RA 11036 and its IRR with emphasis on the basic human rights of persons with mental health condition and consent to treatment; and

(d) Confidentiality of all information or medical records of a worker with mental health condition.

2) Employers are encouraged to extend advocacy, information, education and training activities to the workers’ families and communities through their corporate social responsibility (CSR) programs to strengthen approaches in the prevention of stigma and discrimination and to better understand individuals with mental health conditions

3) The OSH personnel and Human Resource Officers shall undergo capacity building on the identification, recognition of psychosocial hazards and management of mental health problems.

4) Training of workers and program implementers in promoting and advocating mental health in the workplace as well as identification and management of mental health problems may be coordinated with Department of Health (DOH), National Center for Mental Health (NCMH) or with other mental health service providers. (Section 4[A], Ibid.)

b. Promotion and enhancement of workers’ well-being

Promotion and enhancement of workers’ well-being to have healthy and productive lives through the following recommendations, among others:

1) Increasing workers’ awareness on mental health and other common conditions like depression, anxiety and substance abuse including alcohol (ex. distributing leaflets, workshops, posters)

2) Promotion of healthy lifestyle and work-life balance

3) Identification and management of work-related stress and stressors, including interpersonal issues with superiors, subordinates, co-employees, clients and customers

4) Effective management of changes in the work organization and the utilization of human resources systems (e.g., addressing burnout, review of workload)

5) Establishing mental health programs to support workers (e.g., recreational activities)

6) Workers’ achievements and efforts recognition program

7) Psychosocial support in management of disaster and extreme life events

8) Capacity building of managers and human resource personnel in the identification and management of workers with mental health problems

9) Other programs and activities as may be recommended by the OSH committee deemed necessary to promote and sustain the well-being of the workers. (Section 4[B], Ibid.)

c. Social policy

1) Non-discriminatory policies and practices

1) There shall be no discrimination in any form against workers who are at risk of developing or who are found to have mental health condition. Workers shall not be discriminated against from hiring, promotion, and/or other benefits of employment because of their condition provided, however, that such conditions shall not interfere with the employee’s performance of their job or unduly affect his own safety or that of his co-workers, clients and the general public. (Section C[1][a], Ibid.)

2) The fitness to work of workers found to have mental health condition shall be determined by an OH physician, after appropriate medical evaluation, taking into account the clearance provided by a mental health professional. (Section C[1][b], Ibid.)

3) A worker may resume work while undergoing treatment provided that an OH physician has certified that he/she is fit for work and that current treatment shall not cause unsafe conditions for the worker while at work or cause similar unsafe conditions for other workers. To monitor and assist the workers in managing their condition, coordination shall be made between the OH/HR personnel and mental health professional in consideration of the workers’ assigned tasks and the effects of medications taken. (Section C[1][c], Ibid.)

4) Workers who have undergone pharmacological and psychosocial interventions/ treatment and are evaluated by an OH physician to be fit to work shall not be prevented from returning to work or subjected to actions that may be construed as constructive dismissal from service. (Section C[1][d], Ibid.)

5) A worker shall nol be terminated from work on the basis of actual, perceived or suspected mental health condition unless the condition progresses to such severity that it affects his/her own safety or safety of co-workers and work performance and productivity upon the certification issued by a competent public health authority with expertise on mental health. (Section C[1][e], Ibid.)

2) Confidentiality

1) Company policy on confidentiality shall be clearly communicated and understood by all workers. (Section C[2][a], Ibid.)

2) The advance directive prepared by the worker with mental health condition shall form part of the worker’s record (201 file) which should be treated with utmost confidentiality. (Section C[2][b], Ibid.)

3) Results of neuropsychological test as additional requirement of some companies must be treated with confidentiality. (Section C[2][c], Ibid.)

4) Access to personal data or any information relating to a worker’s mental health condition shall be bound by the rules of confidentiality and/or the Data Privacy Act of 2012. (Section C[2][d], Ibid.)

3) Disclosure

1) Workers are encouraged to disclose their medical or mental health condition for purposes of reasonable accommodation. (Section C[3][a], Ibid.)

2) 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:

(a) Unless it is required by law;

(b) With consent from lhe worker with mental health condition;

(c) Life threatening emergency cases where such disclosure is necessary to prevent harm or injury to himself/herself or to other persons; or

(d) 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. (Section C[3][b], Ibid.)

4) Work accommodation and work arrangement

1) Agreements on work accommodation and work arrangements for a worker with mental health condition shall be made between management and workers’ representatives, provided however that such mental condition shall not prevent the worker from performing the requirements of the job or will endanger his/her safety, or that of his/her co-workers, clients or the general public. (Section C[4][a], Ibid.)

2) Measures to accommodate and support a worker with mental health conditions, such as flexible leave arrangements, rescheduling of working hours and arrangements lor return to work must be clearly eKplained to the worker, preferably in the presence of his/her family member. (Section C[4][b], Ibid.)

3) The worker may be allowed to return to work with reasonable accommodation and other such arrangements as determined or as recommended by the mental health professionals and concurred with by the OH physician, if available. (Section C[4][c], Ibid.)

4) Work policies should include monitoring and evaluating worker’s changes in behavior/attitude which may affect his/her productivity/performance. (Section C[4][d], Ibid.)

d. Treatment, rehabilitation and referral system

1) 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.

2) Workers with mental health condition shall be referred to a DOH- licensed/accredited/recognized mental health facility or mental health service providers for appropriate management.

3) 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.

4) If a worker with mental health condition has exhausted his/her leave credits, then the medical leave incurred shall be without pay

5) In the absence of the legally required OH personnel, lhe Safety Officer or HR personnel shall facilitate referral of a worker who is at risk or with mental health condition for medical evaluation and/or intervention. (Section 4[D], Ibid.)

e. Benefits and compensation

1) In determining the appropriate compensation for the diagnoslic, treatment and rehabilitation of a worker with mental health condition, the current health benefit packages under PhilHealth, ECC or SSS whichever are applicable, shall apply.

2) Workers with mental health conditions are entitled to all monetary and non-monetary statutory benefits in accordance with existing rules and regulations without prejudice to the exercise of company policy, rules and regulations on compensation and other benefits.

3) Companies engaging the services of third party healthcare providers are encouraged to include mental health services in their health packages. (Section 4[E], Ibid.)

f. Support mechanism program

A mechanism for access to counseling through referrals 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 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 4[F][1], Ibid.)

5. Responsibilities of employers and workers

a. Employers

Employers shall:

1) Develop, implement, monitor and evaluate mental health workplace policies and programs. They may link up or coordinate with mental health service providers for assistance;

2) Develop and implement programs with reporting mechanisms to address and prevent problems on bullying such as cyber bullying/mobbing, verbal, sexual and physical harassment, all forms of work-related violence, threats, shaming, alienation and other forms of discrimination which may lead to a mental health problem and shall not themselves engage in the abovementioned;

3) Ensure that there are adequate resources to implement and sustain mental health workplace programs;

4) Ensure that they provide the necessary training to the OSH personnel and Human Resource Officers who will develop, implement and monitor the mental health workplace policies and programs ;

5) Provide the necessary work accommodation when needed;

6) Develop mechanisms for referral of workers at risk of developing or with mental health condition for appropriate management; and

7) Ensure compliance to all requirements of existing legislations and guidelines related thereto. (Section 5[A], Ibid.)

b. Workers

Workers shall:

1) Participate actively in the formulation and effective implementation of the workplace policies and programs on Mental Health, through consultations, policy making processes and general assembly in organized and unorganized establishment;

2) Provide assistance in any form to improve the condition of co-workers who are at risk of developing or with mental health condition and refrain from any discriminatory acts against them;

3) Seek assistance from the company OSH personnel on conditions which may be related to or may result to a mental health condition for their appropriate medical intervention and possible work arrangements or accommodation ; and

4) Not themselves   engage in bullying such as cyber bullying/mobbing, verbal, sexual and physical harassment, all forms of work-related violence, threats, shaming, alienation and other forms of discrimination which may lead to a mental health problem or may aggravate existing mental health condition. (Section 5[B], Ibid.)

6. Record keeping and reporting requirements

1) The medical records shall be kept or maintained inside the company clinic. If the clinic is not yet legally required, the medical records shall be kept with HR and access restricted to on an as-needed basis. (Section 6[A], Ibid.)

2) In compliance with the DOLE requirement ol reporting injuries and/or illnesses in the workplace , companies shall report cases to DOLE-Regional Office having jurisdiction over the company, using the Annual Medical Report (AMR) Form. (Section 6[A], Ibid.)

7. Monitoring and Evaluation

The implementation and monitoring of the Mental Health Workplace Policies and Programs shall be the responsibility of the employer through the OSH committee. (Section 7, Ibid.)

Review and evaluation of the Mental Health Workplace Policies and Programs shall be done annually or as necessary to ensure its effective implementation and compliance to latest legal issuances. (Paragraph 2, Section 7, Ibid.)

In compliance with the DOLE requirements on OSH Programs pursuant to D.O. 198, series 2018, the latest copy of the company policy and program shall be submitted to the DOLE Regional Office having jurisdiction over the company. (Paragraph 3, Section 7, Ibid.)

8. Compliance and Enforcement

Compliance of all workplaces and establishments in the private sector to this Guidelines shall be enforced by the DOLE Regional Office which has jurisdiction over the company, in accordance with RA 11058. (Section 8, Ibid.)

9. Penalties

Any violations in this Guidelines, shall be dealt with in accordance with the provisions of existing labor laws and regulations, particularly RA 11058, as may be applicable. (Section 9, Ibid.)

References

DOLE Department Order No. 208, Series of 2020

Republic Act No. 11058, OSH Law

IRR of Republic Act No. 11058

Disclaimer: All information is for educational and general information only. These should not be taken as professional legal advice or opinion. Please consult a competent lawyer to address your specific concerns. Any statements or opinions of the author are solely his own and do not reflect that of any organization he may be connected.

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