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Understanding Your Mental Health Rights in the Workplace: A Primer

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Discussing mental health in the workplace can be difficult. According to data from the National Institute of Mental Health (NIMH), around 18% of U.S. adults — an estimated 43.4 million people — suffered from a mental illness at some point in 2015. Yet most never disclose their condition to an employer. Many keep silent in fear of discrimination and stigma. Others simply don’t know the legal rights they’re entitled to.

It can be confusing navigating the murky waters of employment law, especially when it comes to your mental health. But a firm understanding of your rights and protections can empower you to better advocate for yourself.

What is the law, and what types of mental health conditions does it cover?

Passed in 1990, the Americans With Disabilities Act (ADA) prohibits employer discrimination against those with disabilities. The law applies to employers with 15 or more employees, including state and local governments. It defines a qualifying disability as a “physical or mental impairment that substantially limits one or more major life activities*.”

What does that mean, exactly? “Major life activity” is a pretty broad term, but generally, it refers (but is not limited) to: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The term can also refer to bodily functions, including neurological and brain conditions.

There are any number of mental health conditions the ADA covers, including depression, anxiety disorder, PTSD, bipolar disorder and ADHD, among others.

Your condition does not need to be permanent or even severe to qualify you for the ADA’s protections. Even if your symptoms come and go, if they substantially limit your major life activities, you could qualify for accommodations. It’s also worth noting that in order to utilize the ADA’s protections, you will need to have some kind of record of your mental health condition.

What are my basic rights under the law?

Under the ADA, you have two basic rights:

The right to privacy about your mental health condition: You have the right to choose (or not choose) to disclose your mental health status to an employer.

The right to reasonable accommodations: If your mental health condition is impairing your ability to do your job, you have the right to ask your employer for reasonable accommodations to help you.

A few small caveats here: in order to receive accommodations, you must disclose your mental health condition to your employer. Otherwise, how would they be able to accommodate you? Further, the accommodations must be -- you guessed it -- reasonable. This means your accommodations can’t create an undue hardship on your employer. “Undue hardship” is really just a fancy term for a significant difficulty or expense.

Do I have to disclose that I have a mental health condition when applying for jobs?

No, in the vast majority of cases, you do not have to reveal your mental health condition when applying for jobs. Protecting your own privacy is not lying or hiding. It’s your right under the ADA.

Many applicants simply don’t want to reveal their disability status because they worry the stigma of mental health issues could reflect poorly on them as candidates. The reality is that mental health discrimination can be difficult to prove during the hiring process. Employers may have any number of reasons for rejecting a potential job seeker, but they often lack transparency on their hiring decisions.

Do some research on the potential employer and their practices. If you have a mental health condition, think carefully before you decide whether to disclose. The choice is yours alone, and it’s not to be taken lightly!

What if my mental health condition could affect my ability to perform my job?

Even if you think you may need employer accommodations down the line, you are not required to disclose your mental health status during the hiring process. However, if you are hired and you decide to request employer accommodations for your condition, you will need to disclose your status at that time. You may also need to provide documentation for your condition.

What are “reasonable accommodations” anyway?

A reasonable accommodation is essentially a change in normal business practices. For one person, a reasonable accommodation might mean a flexible schedule to attend therapy appointments. For another, it could be working from home a few days per week.

Remember, these accommodations must be “reasonable” and can’t create an undue hardship on the employer. And what constitutes an “undue hardship” can vary from employer to employer. A multinational corporation will probably be held to a slightly higher standard than a 20-employee small business.

Further, it is on the employer to decide on which accommodations an employee will ultimately receive. You as an employee should be involved in this conversation, but unfortunately, you won’t have the last say. Still, it’s helpful to have a few ideas on hand to help your employer help you.

The following are just a few examples of reasonable accommodations:

Flexible schedule, start time or break schedule

A private, quiet area free from distractions to work or take your breaks

Working from home

Change of supervisory style (for example, your manager writes out your tasks for you and follows up frequently, which he or she does not normally do for other employees)

Extra feedback from supervisors

Reducing work to part-time for a specified period

Am I entitled to take a leave of absence?

A leave of absence should be considered a last resort for accommodating a mental health condition. Many companies do offer paid medical leave but be sure to check with your HR department for more details.

If you don’t have access to paid leave and you’re unable to perform the essential functions of your job, you may be able to utilize the Family and Medical Leave Act (FMLA). The FMLA applies to employers with 50 or more employees and allows employees to take up to 12 weeks of unpaid leave for medical purposes. This law allows you to take your unpaid leave while preserving both your job and benefits. For more information about the FMLA, visit the Department of Labor’s website.

If you believe you are permanently unable to perform your essential job tasks, you can ask your employer to reassign you to a job that you would be able to do, so long as such a position is available. This might be a long shot, but it’s worth looking into when all else fails.

What about personal days?

Personal days are, like most paid leave, at the discretion of your employer. If you have personal days and/or sick days as part of your benefits package, you can use them how you see fit. If you need a mental health day, simply say you are taking the day off for personal reasons.

If you don’t have any paid leave available to you, and you have a mental health condition, you may be able to ask for some paid leave as part of your reasonable accommodations. The employer might refuse, depending on their definition of what’s “reasonable,” but it’s certainly worth looking into. Remember: you won’t get any accommodations if you don’t ask.

*italics denote quoting the ADA

Read more from Your Brain on Work, Levo's new series on our emotions, feelings, thoughts, mental health and states of mind as we navigate our careers.

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