The Law and You: Workplace, Tech and Mental Health

By Vandita Morarka

Our earlier piece in The Health Collective on employee mental health rights in the workplace looked at what the law says about mental health support at the workplace in India. While we wait for legislation to catch up to urgent realities, we must look to companies to implement mental health management strategies and policies. Alongside, it is increasingly important to gauge how technology intersects with mental health management at the workplace and the ethical dilemmas it brings up.

How do these rights and the employee-employer dynamic, with regard to mental health of employees, change with the introduction of technology? Technology that constantly analyses all inputs, across platforms, to assess mental health conditions of employees can have far reaching impacts for how mental health is managed, perceived and treated at the workplace.

This article by Michael Schrage sparked off a conversation at The Health Collective, to try and understand how mental health at work and technology weave in together and what the possible effects of greater integration could be. The Harvard Business Review article cites a global research survey that found “that, combined, employee anxiety, stress, and depression accounted for over 80% of all emotional health cases in 2014” and goes on to say we can increasingly “expect our personal devices to diagnose, monitor, and manage our mental wellness”. Employers might well be taking note, and as the article mentions, HR managers will likely want to monitor and manage mental wellness of their teams.

While in India, the introduction of such technology is at a nascent stage, its vast market size make it a logical next step for the testing and implementation. Facebook recently launched a new suite of tools including the company’s first pattern recognition algorithms to spot users who may be suicidal or at risk of lesser self-harm, as The Scientific American reports. Other social media sites have also been assessed to see how accurately mental health issues can be flagged for users following language based tics. The applicability of similar technology and machine learning to tools at the workplace and availability of this information to employers poses possible benefits, but there are also multiple ethical dilemmas.

Sourya Banerjee, a lawyer, tells The Health Collective, “While it may seem well-intentioned to monitor the mental health of your employees with their best interests in mind, it raises multiple legal and ethical questions. It is after all the feelings and emotions of an individual that the employer would be monitoring in the workplace. Such data would be accessible by the employer and possible third party service providers and can be easily misused.”

ALSO READ: Reporter’s Diary: Workplaces and Mental Health

A lot depends on how mental health is understood at the workplace. While more international managers and corporate leaders (and some of their Indian counterparts) are speaking out about the importance of mental health, there still remains a culture of shame and stigma attached to mental health concerns.

(Image by Raw Pixel)

Formal treatment for mental health is not easily accepted in India and there is an irreversible dysfunctionality associated with a person with mental health issues. Lack of understanding of such concerns, inadequate treatment facilities and support systems do not provide for a conducive ecosystem for the introduction of technology that assesses mental health at workplaces.

What are the guarantees that employees won’t be discriminated against on the basis of their mental health? The same technology could be used as a tool for furthering discrimination rather than helping improve the wellbeing of employees.

Banerjee says, “A machine which can read your mental state may be an antithesis to a safe working environment… It would be akin to making your entire office a ‘Big Boss’ office, with the slight difference being that employers here actually even know what’s going on in your head. This raises huge questions on the violation of their right to privacy.”

Consulting Clinical and Forensic Psychologist Havovi Hyderabadwala also strikes a cautious note.

“There’s no free space because algorithms over the Internet can pick up on things which have been shared all the time through devices. It would be hard to have a balance (of) ethics between the mental health and digital world. At times algorithms can pick up on a lot of positivity and hope and be motivating. It could also spring up a lot of detrimental material which may not be helpful to users therefore making their condition worse,” she tells The Health Collective, “It’s like adding fuel to the fire. The liberty of privacy settings should be given to users whether it is okay for Web to access info that they are sharing through their devices, for example: privacy settings on Facebook, Whatsapp, Instagram.”

The increasing sophistication of technology and higher amounts of time spent on our personal devices for work and otherwise can be used a tool for intervening in issues of mental health, as pointed out by Schrage. While individual use of such devices (notwithstanding data mining by technology companies) may have proven to be useful, workplace interventions using such technology could go either way. Such data could provide invaluable information, the constant tracking and possible privacy issues are too large to ignore. There is also a need then to build culturally responsive tools.

“The knowledge that someone you don’t know is reading your body signals may in turn negatively affect mental health and further worsen the problem than solve it. So machines that can continuously evaluate an employee’s mental state, as they work, while sounding great, is not a great idea, legally or ethically,” Banerjee says.

There are additional privacy concerns regarding data from such technology and what that means for workplace relationships.

• Would employers have an obligation to disclose such data to all co-workers and to subsequent places of employment or would they have an obligation to maintain confidentiality of the individual?

• What would legal consequences of such disclosure mean?

• With a judiciary as overburdened as India’s, would these legal consequences amount to much in face of the professional and personal damage the individual could face?

• Who should be guiding this relationship, the employee or the employer? Can it be an optional policy? And if it is an optional policy, will an employee lose out on benefits by opting out of such tracking?

• Would it result in employees feeling compelled to portray positive mental health markers over time?

These are pertinent questions, steeped in social conditioning, that need to be answered before workplaces are allowed to have access to such technology or similar data mining through existing technology and social media. As a possible alternative, would it be a better step to encourage the mainstreaming of positive mental health practices in the workplace and the provision of support services to those who actively reach out for help, while creating an environment conducive to better mental health?

For example, read more here on The Health Collective about SAGE’s policy and Employee Wellness Programme, where employees and their families can get mental well-being from the 24/7 ICAS counselling service free of charge.

The use of anonymous offline surveys at the workplace can help gauge collective levels of mental health and provide a directional approach to areas that need the mental health focus within the workplace, without the need for an individual’s loss of privacy. Alternatively, tech-based assessment of individual employee’s mental health can be made visible and usable only in aggregate, to protect individuals.

A wide-reaching survey that assesses and addresses workplace mental health and specific needs/demands of employees, activities that reduce stress, policies that place mental health health at par with physical health and large scale sensitisation regarding mental health would serve as a better, evidence-based, starting step to tackle the Indian mental health crisis.

We would love to hear of practices that you’re undertaking at your workplace or concerns you think must be addressed at workplaces for better mental well-being of employees. Tweet us @healthcollectif!