Mental Health Disabilities and Employment: A Guide to Rights & Advocacy
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“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.”
Aaron Konopasky, PhD, JD, Senior Attorney-Advisor for the Equal Employment Opportunity Commission (EEOC)
National Disabilities Employment Month (NDEAM) was started in 1945 to commemorate the contributions of people with disabilities to the US workforce and economy. Held annually in October, NDEAM serves to raise awareness about the importance of inclusive hiring practices in the creation of diverse workplaces.
The 2021 theme for National Disabilities Employment Month is America’s Recovery: Powered by Inclusion. The aim is to ensure that people with disabilities have full access to community involvement and employment during the nation’s recovery from the Covid-19 pandemic. Resources for organizations planning NDEAM activities can be found on the Office for Disability Employment Policy’s webpage as well as strategies for employers to advance disability inclusion year-round.
The focus of this series is on mental health disabilities and employment. In the first part of the series, we gave an overview of the topic focusing on resources for creating a mental health-friendly workplace. The article was based on an interview with a spokesperson from the Department of Labor’s Office on Disability Employment Policy (ODEP).
In this piece, we explore the rights of individuals with mental health conditions at work, common challenges, and advocacy efforts.
Aaron Konopasky, senior attorney-advisor for the Equal Employment Opportunity Commission (EEOC), graciously offered his expertise as an attorney specializing in disability law, rights, and policy.
Meet the Expert: Aaron Konopasky of the Equal Employment Opportunity Commission (EEOC)
Aaron Konopasky, PhD, JD has served as a senior attorney-advisor for the EEOC for 11 years. In addition to his work developing federal regulations and providing sub-regulatory guidance, Konopasky coordinates with other federal agencies on equal employment opportunity requirements. He also does public outreach and training on the Americans with Disabilities Act (ADA) and other nondiscrimination laws such as the Genetic Information Nondiscrimination Act (GINA), the Age Discrimination in Employment Act (ADEA), and Title VII of the Civil Rights Act of 1964.
Konopasky holds a PhD in philosophy from Princeton University. While earning his JD at Stanford, he completed legal internships at the Bazelon Center for Mental Health Law and the Disability Rights Center. He recently presented on the workplace rights of individuals who use opioids under the Americans with Disabilities Act for the 2020 New York EEOC Virtual Technical Assistance Training Seminar commemorating the 30th anniversary of the ADA.
Prior to his legal career, Konopaksy worked in higher education for five years teaching at Tulane, the University of New Orleans, and Rutgers University.
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?’”
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.
Reasonable Accommodations for Mental Health Conditions
So what does it mean if an individual with a mental health condition qualifies for protection under the ADA?
According to Konopasky, one of the things that both employees and employers need to understand is that the ADA is not a benefits program. It is not a way for people to do less. Rather, the ADA is a civil rights statute: “The idea is to give people with disabilities what they need to work productively and do the work that they’re qualified to do,” he explained.
Employees with mental health disabilities qualify for reasonable accommodations under the ADA. Konopasky explained that a reasonable accommodation is “a change related to work that helps the person overcome a barrier posed by the disability.”
Some examples of reasonable accommodations include:
- A quiet work environment or devices that create a quiet workspace
- Flexible work and break schedules
- Changes in supervisory methods (e.g., written instructions or feedback from a supervisor who does not typically provide this)
- A service or emotional support animal (in some cases)
- Specific shift assignments
- Permission to work from home
In some circumstances, taking a leave of absence may be considered a reasonable accommodation. The Family Medical Leave Act (FMLA) can help these employees take leave, when necessary, to seek treatment.
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 Question: To Disclose or Not to Disclose
Let’s take an example: an employed individual is significantly limited by a mental health condition. The person is qualified for the job and capable of doing the work. However, the individual notices productivity being affected by the symptoms of the condition. The person qualifies for reasonable accommodations, which would enable the job to be done in the manner and on the timeline required by the employer.
Why would this individual not want to disclose? Probably due to the workplace challenges mentioned above.
Disclosure is an important step in enacting the protections of the ADA. In fact, a lot of the rights and protections are triggered by disclosure. Konopasky explained, “The employer is required to provide reasonable accommodations to help the person out, but generally speaking, not until the person asks for them.”
This is where the problem occurs. An individual has to come forward and request reasonable accommodations in order for the employer to be obligated to provide them.
However, if the individual does not come forward before the quality or productivity of their work is affected, they might not be able to access the rights and protections to which they would otherwise be entitled. This is because employers are able to enforce standards with regards to quality and productivity regardless of whether a lapse in these areas is caused by disability.
Konopasky explained how situations like these arise:
Sometimes what happens is that people wait too long. Problems creep up. They begin to experience difficulties and they keep it a secret. They don’t disclose because of an illegitimate fear of discrimination … They let it go so far that the employer is allowed to take action, like fire them or demote them or discipline them. And [at that point] the employer is allowed to do that even if the cause of it is the disability.
If a person discloses earlier, however, then something important happens. In those cases, the employer has some obligation to try to help the person prevent those productivity issues from occurring. This illustrates what Konopasky referred to as the “forward-looking” nature of reasonable accommodations. It looks like this:
The person with a disability notices that they’re starting to have difficulty at work and then tells their employer, ‘Look, I’ve got a medical condition, and I am starting to feel like maybe it will affect my work. What can you do to help me?
Rather than this:
The person with a disability starts to have difficulty at work, and their employer notices before the employee has self-disclosed. At the disciplinary meeting, the employee says, ‘The thing that you want to discipline me for is caused by a disability.
In the first scenario, the employee has taken advantage of the right to reasonable accommodations before the quality or productivity of their work has been the subject of disciplinary action. The individual has taken a proactive, forward-looking step towards self-advocacy and accessing ADA protections.
In the second scenario, the employee has waited too long. The person is now explaining behavior that has already taken place. This approach is “backward-looking” and does not afford the individual protection under the ADA.
Konopaskly further elaborated on what happens once an employee has disclosed that a mental health condition is affecting their work and makes a request for accommodations:
At that point, it becomes a shift of responsibility to a certain extent. Instead of the employee just being responsible for his or her own productivity, conduct, and quality of work, and so on, it is now the employer and employee together who are responsible for coming up with ways to support the employee so that they can be productive and produce quality work. And what they’re supposed to do together is figure out what might help. In some ways, it’s a very powerful thing. Disclosure can be a powerful tool to help the person maintain productivity.
For wary employers worried about being taken advantage of, Konopasky advises:
Not everything is a disability; [however] my advice to employers is to say, ‘If this person has a medical condition, how much energy do you want to put into figuring out whether the medical condition is serious enough to be protected by the ADA?’
Often our advice is, ‘Don’t put a whole lot of energy into that. Assume that it’s protected and see what happens next. What they’re asking for may not be all that difficult to achieve.
Overall, the question of disclosure can be a tricky one. There are risks, such as opening oneself up to harassment and discrimination—the reasons the ADA was created in the first place. However, there are also risks associated with not disclosing.
The decision to disclose is at the center of mental health advocacy in the workplace. And it’s a necessary step in enacting the protections of the ADA. Konpasky emphasized the importance of making an informed decision on the issue of privacy versus disclosure with the awareness that “if you don’t disclose, then you might not get what you need in order to maintain your productivity and, ultimately, your employment.”
Timing is everything. There is a certain window of time during which an individual can disclose early enough to get the benefits of doing so. “It can be a delicate balancing act,” Konopasky shared. “It’s a very personal calculation, however, with positive consequences.”
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.
Mental Health Disability & Workplace Equity: The Role of the EEOC
Responsible for the enforcement of federal laws that protect job applicants and employees against discrimination, the EEOC provides a variety of advocacy services. In addition to providing leadership and guidance on EEOC regulations, the Commission works to prevent discrimination through educational, outreach, and technical assistance programs. Another main task of the EEOC is to investigate charges of discrimination.
Konopasky’s office focuses on policy. As such, their work involves keeping tabs on what is happening with regards to mental health disability and employment out in the community. For example, there is a lot of news coverage right now of the mental health consequences of the Covid-19 pandemic. So they are tracking this and learning as much as possible in the event that charges are brought to the EEOC for investigation.
If evidence of discrimination is found in a charge, the EEOC attempts to get a settlement or litigates in the interests of the client. In the case of mental health disability, discrimination can be charged when:
An employer or other entity covered by the Americans with Disabilities Act, as amended, or the Rehabilitation Act, as amended, treats a qualified individual with a disability who is an employee or applicant unfavorably because he or she has a disability.
It is also illegal for employers to discriminate against individuals with a history of mental health disability or who have a close relationship with someone with a mental health disability, such as a spouse or child.
Discrimination can also take the form of refusing to provide reasonable accommodations. Employers covered by the ADA, which includes most employers with more than 15 employees, are required to provide reasonable accommodations to individuals with mental health disabilities who disclose that they are in need of such supports unless doing so would cause undue hardship. This could take the form of extreme difficulty or expense on the part of the employer.
- The employee fills out a form explaining the charge of discrimination on the basis of mental health disability.
- The employee participates in an intake interview. This includes getting help deciding whether to file a charge, doing paperwork, and writing out a statement.
- The EEOC conducts an investigation. The investigator gathers information about what happened in order to make an initial determination about whether it might be discrimination or denial of reasonable accommodation; this might include interviewing the employer, requesting copies of emails, making a deposition testimony, etc. The investigator will then determine if there is sufficient evidence of discrimination to proceed.
- The EEOC, the employee, and the employer (“respondent”) enter into a reconciliation phase. They try to get the parties to come to an agreement in order to settle the case; this could involve money, or reinstatement, or a number of other actions. If they are unable to settle, there is the opportunity of going to court.
- The EEOC files a civil lawsuit. The charging party is given a notice of “righteous due.” However, they can’t file unless they go through the EEOC; in rare cases, the EEOC litigates on behalf of the employee.
Respondents can access the EEOC’s user guide to better understand and navigate the process.