Mental Health Disabilities and Employment: A Guide to Rights & Advocacy

What Mental Health Conditions Are Protected Under the ADA?

The Americans with Disabilities Act (ADA) does not provide a list of diagnoses that qualify as disabilities. One might be led to believe this is the case as some employment applications give job candidates the opportunity to disclose if they are currently or have ever been affected by a disability. A list is provided on such applications, and mental health conditions such as major depressive and post-traumatic stress disorders are included.

However, this list is not all-encompassing. “What matters,” Konopasky clarified, “is how a mental health condition affects the person.” A disability, he continued, is “a medical condition that substantially limits a major life activity, like standing, sitting, walking, concentrating, thinking, communicating.”

Thus, the determination of whether or not a person has a mental health disability is highly individualized. It is based not on the presence of a mental health condition, but rather on how the condition affects a specific person’s ability to carry out important life tasks. And this might vary from person to person dealing with the same mental health diagnosis.

The ADA was amended in 2008 and the definition of disability was broadened. The changes to the Act took effect in 2009 and one of the results is that making a determination on the presence of a disability now includes evaluating the condition in the absence of treatment. Konopasky explained, “So the question is not really ‘Are you affected by the condition?’ It’s ‘Would you be affected by the condition in the absence of medication, treatment, or other kinds of supports?’”

He continued:

To have a disability is to have a major life activity substantially limited in the absence of treatment and other medicating measures. That’s also during an active episode, so if you have something that comes and goes, you’re supposed to evaluate it when it’s present.

For instance, if a person is prone to panic attacks, to determine whether the condition is “substantially limiting,” the evaluation needs to take into account the person’s functioning during a panic attack that occurs when the person is not taking medication.

For individuals uncertain about whether or not their condition qualifies as a disability protected under the ADA, Konopasky explained, “If a mental health condition makes life more difficult, uncomfortable, or painful to the point that the individual needs to ask for something different at work, it is likely to qualify as a disability.”

Another important aspect is that a mental health condition does not have to be permanent to qualify as a disability. It also doesn’t have to stop you from doing other life activities or be debilitating to the point that you’re unable to do things like leave the house, although this can be the case.

Konopasky added that despite the broadness of the amended ADA definition and the likelihood that a mental health condition affecting a person’s ability to carry out a major life activity will qualify, not everything is going to qualify as a disability.

Workplace Challenges

It’s important to note that individuals with mental health disabilities have different experiences at work. However, there are three common challenges often faced.

The first is that the symptoms of the mental health condition affect the employee’s productivity or work product. For example, a person suffering from major depression may have difficulty getting out of bed in the morning. As a result, it may be hard for this employee to arrive on time if working a morning shift. Or it may be difficult for this individual to meet deadlines. This is where requesting reasonable accommodations comes into play.

In addition to requiring employers to provide reasonable accommodations for employees with mental health disabilities, the ADA also protects such individuals against discrimination. Unfortunately, employees with mental health conditions can be subjected to discrimination in the workplace in a variety of forms. Konopasky shared,

We do see cases where employers hold stereotypes about people with mental health conditions. When they find out that the person is taking psychiatric medications, they get fired or are isolated or people harass them. All of that is very real … [This might also happen] if they were hospitalized or attempted suicide, for example, and co-workers find out.

Getting fired after asking for reasonable accommodations, an example of retaliation, is illegal. So is disparate treatment, treating an employee differently than others because of a mental health condition assuming they’ll cause a problem or are dangerous for example.

Other examples of retaliation include being demoted, disciplined, reassigned, or getting a reduction in salary. Harassment based on mental health conditions may entail co-workers excluding, insulting, or ridiculing them to the point that they make the job a hostile work environment.

The ADA protects against employers taking adverse action against individuals with mental health disabilities on the basis of stereotypes, generalizations, and biases. Modeled on Title 7 of the Civil Rights Act, the ADA states that employers can’t fire someone based on disability. Konopasky explained, “Just like you can’t fire someone because they’re a certain race or religion, you can’t fire them because of the fact that they have a disability.”

The ADA makes it unlawful to discriminate in employment against a qualified individual with a disability. Employers can take action on the basis of poor performance, but not on the basis of a mental health condition.

The third issue is that an employee with a mental health disability may have a perception of bias or discrimination. This happens in cases where the workplace is friendly—they wouldn’t fire the person—but the individual is afraid that they would. It is due to this fear, Konopasky said, that “there is a tendency for people to want to keep their disability a secret.”

The Role of the Mental Health Provider

Mental health providers have an important role in helping individuals access their rights under the ADA. While this is an important role, it is not necessarily a large role as is the case when individuals apply for benefits programs like social security disability insurance (SSDI or SSI).

Qualifying for either benefits program is a lengthy process that requires a significant amount of support and documentation. In these cases, mental health providers play a central role.

Supporting clients in accessing their rights under the ADA does not entail as much work from providers; however, it does call for a clear understanding of what exactly is being asked of them and how to provide the specific information required.

Here is what mental health providers need to do in the ADA context:

1) Verify that the person has a mental health condition

The mental health provider verifies that the client is being truthful.

2) Confirm that the problem at work is connected to the medical condition/disability

The mental health professional confirms the connection between the job and the disability. Employers might not know what the symptoms of the condition are and how it affects people; they might need to be told that this is a legitimate problem caused by a specific medical condition.

3) Provide documentation of disability

This is routine—especially in cases where the disability is not visible or obvious. The mental health professional provides a diagnosis and a statement. Konopasky emphasized the importance of minimizing the amount of information disclosed. He said to provide “just enough medical information to show that the person would be substantially limited in a major life activity in the absence of treatment,” legally speaking.

To do so, the medical professional gets permission from the individual, and the client signs a disclosure. But that doesn’t mean that the individual’s whole medical file needs to be shared. An example of how this could be stated is as follows: “This person has depression and if not treated with medication, would have great difficulty coming to work every day.”

The statement doesn’t have to be long or too detailed, nor does it have to include the diagnostic instruments used to come to that conclusion. It does not have to state the reason for the condition either—in this case, why the individual is depressed; Konopasky stated that essentially, “All of that is beside the point. The issue is that they have this condition, it’s affecting them, and it’s significant enough that it qualifies as a disability.”

Konopasky added that sometimes it’s hard for mental health providers and other health professionals to understand what it is that they are being asked. He also acknowledged that in some counseling circles, there is a resistance to labeling individuals and a tendency to encourage clients not to disclose their treatment status to other people, especially employers. He cautioned, “That’s legal advice. The client is the one who has to decide whether to disclose or not.”

With respect to the diversity of counseling traditions and their merits, Konopasky advised mental health professionals to consider that, “In some cases, the person may find it valuable to have the label because that’s the way to get access to the rights that they have under the ADA.”

With that in mind, he urged providers to 1) recognize that there might be a benefit to disclosure, and 2) provide documentation to support a client’s request for reasonable accommodation.

He also spoke of a common conundrum mental health providers face regarding employers, who may believe the responsibility of making the determination on disability part of the provider’s role. Actually, it is the opposite:

Sometimes employers don’t understand this and want to push the health provider into doing more … from a legal standpoint, it’s the employer’s responsibility to come up with the disability determination. There’s no rule stopping the health professional from saying, ‘This person has an ADA disability.’ [There’s] nothing stopping the doctor from doing that. They can say, ‘This person’s condition substantially limits a major life activity.’

But what they really need to do from the point of view of the law is to provide just enough medical information to help the employer determine/realize that the person has a disability. To do that they would just need to know that the condition is substantially limiting in the absence of treatment and other medicating measures during an active episode.

Sometimes doctors are put in a tough spot. The employer wants to shift the responsibility of making that determination onto the doctor, but legally speaking, it’s their responsibility. The doctor just provides the medical stuff: this is real and it can affect them at work.

So what it boils down to is this: Helping clients gain access to ADA protections is about describing the effect of the condition on the person’s functioning. That’s it.