The National Institutes of Health (NIH) has found about 1 in 4 Americans experience mental health issues each year. About one in 17 Americans lives with a “serious mental illness” such as schizophrenia, bipolar disorder or major depression. The effects of mental health issues on a worker’s employment are often substantial and can be disastrous when employers fail or refuse to properly analyze employee rights. Workers and their loved ones can familiarize themselves with basic workplace mental health rights below; for further information, or to discuss specifics of an individual’s situation, please consult with a knowledgeable attorney.

WHAT WORKPLACE RIGHTS DO EMPLOYEES WITH MENTAL HEALTH ISSUES HAVE?

An employee has legal rights under both the Family and Medical Leave Act and the Americans with Disabilities Act Amendments Act of 2008 if he:

1. Suffers from a “serious health condition” and an impairment that substantially limits one or more of an individual’s major life activities;

OR

2. Suffers from a “serious health condition” and has a record of an impairment that substantially limits one or more of the employee’s major life activities;

OR

3. Suffers from a “serious health condition” and is regarded as having an impairment that substantially limits one or more of the employee’s major life activities.

In this situation, an employer believes that an employee is disabled but the employee does not actually suffer from an impairment that substantially limits one or more of his major life activities, yet still suffers from a “serious health condition.”

Qualified employees with mental health conditions are entitled to work leave under the FMLA.

It is likely a diagnosed mental health issue will be a “serious health condition” covered by the Wisconsin and federal Family and Medical Leave Acts. As with any qualifying serious health condition, an employee has the right to medical leave “because of a serious health condition” rendering the employee “unable to perform the functions of the employee’s position.” Courts have found many mental health conditions to be serious health conditions but this determination is made on a case-by-case basis. In addition, even if the illness is a “serious health condition,” it must still render the employee unable to perform the functions of his position before the employee is entitled to 12 weeks of leave under the FMLA.

An employee’s mental health issue may qualify as a “disability” under the Americans with Disabilities Act, thereby extending employee protections under that law.

Whether a mental health issue is an “impairment” as required to gain protection under the Americans with Disabilities Act is a factual issue assessed on a case-by-case basis. An individual is disabled if he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Mental health conditions may be “disabilities” under the ADA, depending on the severity of the impairment.

An employer may not take an “adverse action,” such as demotion or termination of employment, against an employee because of the employee’s disability. Employers are also required to reasonably accommodate employee disabilities.

An employer’s duty to accommodate employees with mental health issues can present unique and significant challenges. The Job Accommodation Network (JAN) recommends considering the following questions to assist employers and employees with the interactive process:

1. What limitations is the employee with a mental health impairment experiencing?

2. How do these limitations affect the employee and the employee’s job performance?

3. What specific job tasks are problematic as a result of these limitations?

4. What accommodations are available to reduce or eliminate these problems? Are all possible resources being used to determine possible accommodations?

5. Has the employee with a mental health impairment been consulted regarding possible accommodations?

6. Once accommodations are in place, would it be useful to meet with the employee with a mental health impairment to evaluate the effectiveness of the accommodations and to determine whether additional accommodations are needed?

7. Do supervisory personnel and employees need training regarding mental health impairments?

Workplace accommodations include, but are not limited to, flexible work schedules, telecommuting, private offices or work spaces, and job restructuring. This list is by no means exhaustive as the appropriate reasonable accommodation must be determined as a result of an extensive, interactive process between the employer, employee, and mental health care professionals. No potential accommodation is included or excluded as per se reasonable or unreasonable. It is important for employees to enlist the support of their mental health care professionals when crafting an accommodation proposal.

Hawks Quindel is committed to the protection of employees with mental health issues. Please join us in participating in the National Alliance for Mental Illness (NAMI) Walk on October 5, 2014 at noon at Olin-Turville Park. NAMI strives to improve the lives of people living with mental health issues in the United States by advocating and supporting access to treatment and community through grassroots organizing. We are excited to join and support NAMI in its efforts to prioritize mental health in the Dane County community. Please visit NAMI’s national website and NAMI’s Walk website for more information about NAMI and to sign up for the NAMIWalk today.

Nicholas Fairweather

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