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Mental Health in the Workplace

Posted by Kathy Harrington-Sullivan | Dec 20, 2021 | 0 Comments

Mental health, once a taboo topic for many employers, became a top business consideration in 2021 as people became more open during the pandemic about the challenges they face. According to a Harvard Business Review report, two-thirds of surveyed employees told someone they work with about a mental health challenge in the past year—an increase from the original 2019 survey.

While such conversations may help normalize the discussion of mental health at work, the same report found that only 49 percent of respondents saw the resulting dialogue as positive or supportive. Many workers also reported leaving jobs for mental health reasons—both voluntarily and involuntarily—including 81 percent of Gen Zers and 68 percent of Millennials.

Of course, the law does protect employees from mental health-related discrimination. But what protections does it offer, and if you're experiencing harassment or lack of accommodation at work, what should you do?

Mental health protections under the ADA

The Americans with Disabilities Act (ADA) makes it illegal for employers to discriminate against you or harass you for a mental health challenge, like depression, anxiety, post-traumatic stress disorder, bipolar disorder, schizophrenia, obsessive compulsive disorder or addiction recovery. The Family and Medical Leave Act may provide additional protections for some workers.

Under the ADA, employers may not fire you, demote you, reject your promotion or choose not to hire you because of your mental health challenge. You still must be able to perform your job (perhaps with accommodation—more on that below) and do so safely, but otherwise, your mental health should not factor into decisions about your employment.

It's also illegal to harass you about your mental condition or even ask about it after hiring, unless your performance or safety record warrants it.

Often, though, employees will choose to share at least some information about their mental health challenge to receive an accommodation. Employers are required to provide reasonable accommodation, whether it's allowing time for a weekly therapy appointment for an employee with anxiety or setting up a quiet, private workspace for someone with PTSD.

How to address mental health at work

While ultimately your employer has to treat your mental health issue as it would a physical disability, it's smart to know your rights and understand your employer's expectations.

An employer may still fire you for performance reasons or for violating company policy. Instead, get in front of the issue and ask for accommodation if you need it. Tell your manager that your ADHD makes it challenging to field sporadic requests and that a written list or daily meeting would allow you to perform better. Ask HR if you can work remotely to better manage your anxiety, worsened by the pandemic. If you'd like to enter treatment for a mental health challenge and need to use several weeks of FMLA, your request should be handled the same way as a surgery or other physical procedure would be.

Your employer might request supporting information from your physician, but you don't necessarily have to share your specific diagnosis. You also can't be charged for any accommodations your employer makes.

If you're harassed by a manager or coworker about your mental health challenge, report it.

The ADA only covers employees who work for companies of 15 people or more. FMLA applies to companies of 50 or more. Smaller businesses are also more likely to argue that they can't provide accommodations.

It's important to know that employers can't discriminate against you based on misconceptions about your challenges either. Earlier this year, the EEOC announced a lawsuit against two industrial equipment and services companies. The companies, which operate as one entity, withdrew a job offer from a welder who used prescription medication to treat anxiety and opioid addiction. While the employee had shared his medication list with the pre-employment drug screening facility and passed the test, the medical review officer flagged him as a safety risk. Instead of looking into the matter further, the company withdrew the offer.

Ultimately, supportive mental health policies and culture are good for employees and businesses—leading to fewer missed workdays, better job satisfaction and lower turnover. But if you think you've been discriminated against in the workplace because of a mental health challenge, you may want to speak to an attorney. At Barrett & Farahany, we are happy to answer any questions about your situation. Please contact us to speak to one of our attorneys.

About the Author

Kathy Harrington-Sullivan

Kathy Harrington Sullivan is a Partner at Barrett & Farahany who helps potential clients understand the law, clarify their rights, and determine which steps they can take to protect themselves and their jobs.

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