Work-related mental health issues came to the fore when the COVID-19 pandemic hit, and in the years after as societies emerged from it. The issue, however, is not new, and Philippine workplaces now operate under a legal framework that already requires employers to address it.

As early as 2018, the Philippines enacted Republic Act No. 11036, or the Mental Health Act (MHA). Section 25 of the law 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 the Guidelines for the Implementation of Mental Health Workplace Policies and Programs for the Private Sector. The guidelines apply to all workplaces and establishments in the formal sector, including those deploying overseas Filipino workers (OFWs).

The guidelines state 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 who have mental health conditions, facilitating access to medical health services, and promoting workers’ well-being toward healthy and productive lives. In practice, this makes mental health planning part of ordinary compliance, alongside occupational safety and health measures.

The policy and program must be jointly prepared by management and workers’ representatives and integrated into the company’s occupational safety and health (OSH) policies and programs. In organized establishments, it may be included in the Collective Bargaining Agreement (CBA) and must be made known to all workers.

Employer implementation strategies include advocacy, information, education, and training activities. All workers must be provided with standard basic information and education on mental health. This should include, among others, understanding mental health and its impact in the workplace and workforce, identification and management of mental health problems in the workplace, the salient features of RA 11036 and its implementing rules and regulations, and the confidentiality of all information or medical records of a worker with a mental health condition. For employers, this means the policy is not only a document to file, but also a continuing internal process that has to be communicated and applied.

Employers are responsible for promoting and enhancing workers’ well-being through:

1. Increasing workers’ awareness of mental health and other common conditions such as depression, anxiety, and substance abuse, including alcohol;

2. Promoting a healthy lifestyle and work-life balance;

3. Identifying and managing work-related stress and stressors, including interpersonal issues with superiors, subordinates, co-employees, clients, and customers;

4. Effectively managing changes in the work organization and the use of human resources systems;

5. Establishing mental health programs to support workers;

6. Implementing a recognition program for workers’ achievements and efforts;

7. Providing psychosocial support in the management of disasters and extreme life events;

8. Building the capacity of managers and human resource personnel in identifying and managing workers with mental health problems; and

9. Adopting other programs and activities recommended by the OSH committee that are deemed necessary to promote and sustain workers’ well-being.

In developing the Mental Health Workplace Policy and Program, there must be no discrimination against workers who are at risk of developing or who are found to have a mental health condition. Workers may not be discriminated against in hiring, promotion, or other benefits of employment because of their condition if it does not interfere with job performance or unduly affect their safety or that of co-workers, clients, and the general public. A worker may not be terminated on the basis of an actual, perceived, or suspected mental health condition unless the condition progresses to such severity that it affects the worker’s own safety or that of co-workers, as well as work performance and productivity.

Access to personal data relating to a worker’s mental health condition is governed by confidentiality rules and 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 are not obliged to reveal information about a worker with a mental health condition to third parties except in the following cases:

a. When required by law;

b. With the consent of the worker with the mental health condition;

c. In life-threatening emergency cases where disclosure is necessary to prevent harm or injury to the worker or to other persons; or

d. When 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 must be made between management and workers’ representatives, provided that the condition does not prevent the worker from performing the requirements of the job or endanger the worker’s safety, or that of 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 for return to work, must be clearly explained to the worker, preferably in the presence of a family member.

Mental Health Workplace Policies and Programs must include 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 provides access to mental health services. Workers with a mental health condition must be referred to a Department of Health-licensed, accredited, or recognized mental health facility or mental health service provider for appropriate management.

Absences of workers undergoing treatment and rehabilitation must be charged against their leave credits, or they may use other regulated leaves such as Victims of Violence Against Women and their Children (VAWC) leave, if applicable, without prejudice to existing company policies on leave availment. If a worker with a mental health condition has exhausted leave credits, the medical leave incurred shall be without pay.

The Occupational Health and Safety Officer or HR personnel must facilitate the referral of a worker who is at risk of or has a mental health condition for medical evaluation and/or intervention. Access to counseling must be included in the company health policy and services. Employers may engage a counselor who is trained and qualified to provide mental health services for counseling workers with mental health issues or for counseling services extended to families and groups 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. The penalty is 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 responsible for the offense. If the violation is committed by an alien, the alien offender shall be immediately deported after service of the sentence, without need for further proceedings. These penalties are without prejudice to the administrative or civil liability of the offender or the facility where the violation occurred.

Thus, workplaces and establishments that have yet to develop a Mental Health Workplace Policy and Program should do so now for legal compliance and to ensure the required procedures are in place before concerns arise.

The views and opinions expressed in this article are those of the author. This article is for general informational and educational purposes only and does not constitute legal advice or legal opinion.

John Frederick E. Derije is a senior associate of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW), Davao Branch. (6382) 224-0996 jederije @accralaw.com