May is Mental Health Awareness Month.  Individuals with mental health conditions are protected in the workplace in several different ways, but we will see employers having difficulty in this context.  Whether it’s because of stigmas associated with mental health conditions, or a lack of awareness as to how to handle situations where an employee needs support during a difficult time, this is one of the most common areas where we see things falling apart at work. 

Many if not most mental health conditions are “disabilities” within the meaning of the anti-discrimination laws including the federal Americans with Disabilities Act (ADA) and the New York State Human Rights Law (NYHRL). This means that qualified employees are entitled to reasonable accommodations and to be free from discrimination, harassment and retaliation for making a complaint of violations of the law. Under the NYHRL, victims of domestic violence are also entitled to time off to receive counseling. Mental health conditions can also fall under the definition of a “serious health condition” within the meaning of the Family and Medical Leave Act (FMLA). The FMLA is the federal law that gives eligible employees of larger private employers and public employers up to twelve weeks of job protected leave. 

WHAT IF YOU NEED SUPPORT?

Sometimes employees need time off to treat a mental health condition. Other times, employees need an accommodation because, for example, a medication may incapacitate them at certain times of the day.  In either of these situations, the law typically puts the initial burden on the employee to give the employer enough information to put it on notice that leave or an accommodation is needed. If you are eligible for FMLA leave, the employer will typically provide you with a medical certification for your doctor to complete. If you are more in the reasonable accommodation context (and sometimes a scenario falls under more than one statute), your employer is required to engage in an interactive process with you to figure out a suitable accommodation. You may not always be entitled to exactly what you’re asking for, but the law wants the employer and employee to work together to find a solution. 

WHEN DO THINGS GO SOUTH? 

Sometimes the nature of the mental health condition carries stigmas that result in discrimination in the workplace. Maybe you don’t need an accommodation or leave at all, but your employer becomes aware that you went to rehab or that you are a veteran with PTSD. Sometimes we see employers start to treat employees differently – they suddenly consider them to be a danger, or they start micromanaging them. 

Other times employers simply don’t realize the disability laws are implicated, and they don’t treat a mental health condition the same way they might treat a physical condition that requires an accommodation. Sometimes, at the end of FMLA leave, an employer might perceive their legal obligations to be met, and they fire an employee who needs a little more time off. At that point, the disability laws may have protected an additional period of leave, and sometimes employers get themselves in trouble in that context. 

It can be very difficult to raise a mental health struggle to your boss.  And, unfortunately, sometimes this disclosure does result in a breakdown of the employment relationship. But employees do have rights and it is important for employers to be aware of these rights, to avoid applying stigmas, and to treat with sensitivity a situation that is often temporary – at least in its impact on the workplace – and can be handled with compassion and moved past. 

Every situation is unique, including whether a condition falls within the applicable laws or whether an accommodation is feasible. This article should not be relied on as legal advice or in taking action at work. If you need support, consult your handbook on appropriate procedures and consider speaking to HR or an attorney about your options. 

ABOUT THE AUTHOR

Giovanna A. D’Orazio has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna also has experience litigating Article 78 proceedings in New York State court.