American workers have few rights in the workplace, and those afflicted with mental health disorders are among the most vulnerable. Any worker can be fired, demoted, transferred, etc. at any time for just about any reason. There are very few areas of refuge: employers can’t discriminate on the basis of race, color, national origin, sex, religion, age, and disability (on the federal level – some states and cities have additional protections, including marital status, sexual orientation, and others). Mental disorders can qualify as disabilities, but workers who suffer from them often miss out on the legal protections available to them.
Approximately 57.7 million American adults experience a mental health disorder, from a single bout with depression to schizophrenia, in any given year. http://www.nami.org/Content/NavigationMenu/Inform_Yourself/About_Mental_Illness/About_Mental_Illness.htm. That is about one in every four adults. Not every one of these individuals is too disabled to work, and many of them need only a temporary leave. But for many reasons these workers do not get that accommodation.
The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability and requires reasonable accommodations of disabled employees, and the Family Medical Leave Act (FMLA) requires some employers to provide some employees with up to 12 weeks of unpaid leave if it is medically necessary. The FMLA applies only to employers with 50 or more employees (the ADA applies to employers with 15 or more employees), and only to employees who have worked for that employer for at least a year and worked at least 1,250 hours during the year before the leave.
A recent decision by the federal Court of Appeals for the Eighth Circuit held that an employer did not violate the ADA or FMLA when it invited an employee with an anxiety disorder to resign with two weeks of severance pay rather than granting him medical leave or a reasonable accommodation. (The case is called Kobus v. College of St. Scholastica, Inc.: http://www.ca8.uscourts.gov/opndir/10/06/091583P.pdf). The employee made two big mistakes, according to the court: first, he did not inform his employer that he had a disability or a medical condition that required leave; second, he did not request a leave.
On the surface those sound like good reasons: it isn’t reasonable to expect an employer to provide leave or another accommodation to an employee that it doesn’t know is ill, or to provide leave to an employee who doesn’t ask for it. But if you dig a little deeper this case reveals how the laws protecting ill and disabled workers let people with mental disorders fall through the cracks.
First, is it really any surprise that an employee wouldn’t tell his employer that he was suffering from a mental disorder? There is an enormous stigma in this country (at least outside of Manhattan) to admitting that one is seeing a therapist or is on psychotropic medication. Often people don’t tell their family or close friends these things. There is even less reason for them to risk the repercussions of telling their employers, who might question their ability to do their jobs or even demote or fire them rather than keep a “crazy” person around. The employee in this case testified that he didn’t tell his employer that he was taking medication because he “wasn’t real proud of that fact.”
But the employee did tell his employer about his illness. After he was diagnosed with an anxiety disorder and prescribed Paxil, he “began” (suggesting he did it more than once) telling his supervisor that he was suffering from anxiety and stress. In the recent past the poor guy had endured “the illness and death of [his] mother after an apparent medical mistake; the serious illness of his brother; his ex-wife’s cancer diagnosis; and news that his son had been diagnosed with bipolar disorder and had subsequently dropped out of college.” Despite all this, the court focused on the fact that he did not tell his employer that he was taking medication for his condition or that he was depressed. In contrast the Equal Employment Opportunity Commission, which is the federal agency responsible for enforcing the ADA, recommends that “an employee’s request for time off because he is ‘depressed and stressed’” should be “sufficient to put the employer on notice that the employee is requesting reasonable accommodation,” which could include a leave of absence. My guess is that “anxious and stressed,” which is what the employee in this case told his supervisor, would be sufficient for the EEOC, meaning that the employer did know that the employee was ill. But the federal appeals court can choose to ignore the EEOC’s recommendation, and so it did.
Second, the employee did request a leave, specifically a “mental health leave.” But he had no vacation or sick leave available, which illustrates an important gap in the laws: employers are not required to provide paid vacation or paid sick leave (although in this case he may have just used all his leave). Even for salaried employees, an employer can choose not to provide any paid leave at all. On top of that, the 12 weeks of FMLA leave (assuming one is even eligible for them) are unpaid. And, the FMLA allows employers to require an employee to provide a doctor’s certification that they are ill and cannot work, but seeing a doctor requires health insurance (in this case, the employee said that he did not have a doctor and therefore could not meet the requirements for FMLA leave), cash, or both. A sick employee who should take a leave but can’t afford to forego the income might rationally choose not to request a leave. That doesn’t mean the employer should lose a lawsuit because the employee didn’t request leave. It means that the laws need to change so that people don’t have to choose between their health and four weeks of pay plus the cost of a doctor’s visit.
The disabled (whether through a physical or mental disorder) are among the populations least able to absorb that loss of income. 32% of disabled adults fall below the poverty line. http://www.spotlightonpoverty.org/ExclusiveCommentary.aspx?id=0e1ca1a2-e921-4349-866b-273a2216c664. But people with mental disorders may be the worst off financially. People “in the lowest socioeconomic strata are about two and a half times more likely than those in the highest strata to have a mental disorder.” http://www.surgeongeneral.gov/library/mentalhealth/chapter2/sec8.html#introduction, Those disorders are serious: approximately 80% of people with depression find that it interferes with their ability to work. http://www.cdc.gov/nchs/data/databriefs/db07.pdf.
Workers need more protections in the workplace, and the most vulnerable need them most of all. For that to happen, we must change the laws. Individuals with mental disorders need more acceptance in society so they can ask for what they need and exercise their rights. For that to happen, we must change our minds. Visit www.nami.org for more information.