Rights of Employees with Mental Health Conditions - Barrett & Farahany

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Rights of Employees with Mental Health Conditions

Rights of Employees with Mental Health Conditions

Federal law—most notably the Americans with Disabilities Act (ADA)—grants certain employment rights to persons suffering from physical infirmities, such as impaired vision or hearing, reduced mobility, and diminished breathing capacity. But what about people who are afflicted with mental health disorders? Are they covered by the ADA as well? Yes, those employees who suffer from mental disorders are protected by the same laws that govern the rights of the physically disabled. In fact, the ADA does not recognize a clear distinction between physical and mental impairments, giving individuals in both categories fundamentally the same consideration under the law.

Which Mental Health Disorders Are Protected by the ADA?

The ADA defines mental disability the same way it defines physical disability: It is a condition that “substantially limits one or more major life activities.” An employee cannot be denied employment because he or she has a mental disorder.

Mental disorders that fall under ADA protections include, but are not limited to, the following:

  • Post-traumatic stress disorder (PTSD)
  • Obsessive-compulsive disorder (OCD)
  • Schizophrenia
  • Bipolar disorder
  • Major depressive disorder

A mental disability may be either temporary or permanent in nature. Under the ADA, an employee may request reasonable accommodations at the workplace to enable them to perform their duties.

What Kinds of Accommodations May Be Requested?

Commonly requested accommodations include work-from-home arrangements, rearranging an employee’s schedule to allow for meetings with a doctor or therapist, or assigning a private workplace to minimize distractions. Accommodations can be virtually anything, so long as they do not place an “undue burden” on the employer.

Is an Employee Required to Disclose Their Mental Health Status to Their Employer?

In general, an employee has no legal obligation to reveal a mental health disorder to an employer. Where an employee’s mental health condition comes to light, an employer cannot legally fire the employee for his or her mental health status or for failing to disclose the mental health issues previously. The exception is where an employee requests an accommodation at work, in which case the employee must disclose his or her condition.

Is an Employer Allowed to Ask an Employee About Their Mental Health Status?

No, with a few exceptions. An employer is allowed to ask about a potential mental health disorder if there is objective evidence that (1) the employee has such a condition, and (2) the condition may pose a safety hazard and/or interfere with the employee’s ability to perform job duties.

An employer can ask an employee about mental health in the period after a job offer has been extended, but prior to the beginning of formal employment, as long as they customarily ask such questions of all employees who are hired in the same type of role.

An employer is also permitted to ask questions relating to mental disorders if the company is attempting to fulfill affirmative action requirements, but the employee is not required to answer such questions.

What If the Employee’s Mental Health Condition Poses a Safety Issue in the Workplace?

Companies are not required to employ anyone whose mental disorders may cause a “direct threat” to themselves or others, even with reasonable accommodations, but the employer must have objective evidence that this is the case. The employer cannot rely on prejudices about the mentally ill as a reason to deny or terminate employment.

What If Reasonable Accommodations Aren’t Sufficient?

If the employee cannot perform his or her duties even with a reasonable accommodation, they may still qualify for unpaid leave if this will help them recuperate from a temporary mental disability. Alternatively, employees in these circumstances sometimes qualify for leave under the provisions of the Family and Medical Leave Act (FMLA).

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