According to the U.S. Equal Employment Opportunity Commission (EEOC), you are protected against discrimination and harassment at work if you suffer from any of the mental health conditions listed here:
3. adult ADHD (attention deficit hyperactivity disorder)
4. post-traumatic stress disorder (PTSD)
5. any other mental health condition that may affect your ability to work
Precisely what are the obligations of employers to employees who are dealing with one of these mental health conditions? Can a San Francisco employment lawyer help? And if you are the employee, what is your recourse if you are targeted for discrimination or harassment because of your mental health condition?
CAN AN EMPLOYER FIRE YOU BECAUSE OF A MENTAL HEALTH CONDITION?
Mental health problems are a growing health concern, and not only in the United States. The World Health Organization estimates that two mental health conditions – anxiety and depression – will cost the global economy $925 billion a year over the next fourteen years.
The Americans With Disabilities Act of 1990 (ADA) is the federal law that prohibits an employer from discriminating against a job candidate or employee on the basis of a disability, whether that disability is mental or physical.
It is against the law in California for any employer to discriminate against you because of a mental health condition. You may not be terminated, rejected for a job or for a promotion, harassed, or forced to take leave against your will.
WHAT ARE THE RULES FOR HIRING AND RETAINING EMPLOYEES?
A California employer does not have to employ or retain anyone who cannot perform the job – whether or not that person struggles with a mental health condition. And employers do not have to hire anyone who poses a significant risk of substantial harm to others or to himself or herself.
But before an employer can fire you or reject you for employment, the employer must have factual evidence that you cannot perform the job or that you pose a risk to safety. You can’t be fired on the basis of an employer’s stereotypes or “hunches” about your mental health condition.
If your mental health condition could affect your job performance, you have the right to ask your employer for a reasonable accommodation to help you do the job.
WHAT ARE REASONABLE ACCOMMODATIONS?
The ADA compels employers to provide reasonable accommodations, provided that the accommodations do not impose undue hardships on the employers.
What is a “reasonable” accommodation? In most cases, all that’s needed is a minor change that doesn’t “unduly” cost or burden the employer. For someone struggling with a mental health condition, reasonable accommodations at work are usually small changes that might include:
1. adjusting schedules
2. modifying existing equipment or obtaining new equipment
3. revising policies, tests, or training materials
WHAT IF YOU CAN’T WORK, EVEN WITH AN ACCOMMODATION?
If your mental health condition prevents you from performing the essential functions of your job – even with a reasonable accommodation – and you have no paid leave available, you may still be entitled to unpaid leave in most employment circumstances in California.
The Family and Medical Leave Act of 1993 (FMLA) is a federal law that requires employers with fifty or more employees to provide twelve weeks of job-protected, unpaid leave (in a twelve-month period) for qualified employees to deal with a “serious health condition.”
The Department of Labor defines a “serious” condition as a health condition requiring hospitalization or “continuing treatment” and more than three days absence from work.
WHAT IS CALIFORNIA’S HEALTHY WORKPLACE HEALTHY FAMILY ACT?
Employees in this state may also be covered by the Healthy Workplace Healthy Family Act of 2014, which requires California employers to offer an hour of paid sick leave for every thirty hours worked.
With only narrow exceptions, the Healthy Workplace Healthy Family Act covers almost every California employer. Employees become eligible to begin using their sick leave hours after ninety days.
IF YOU ARE DISCRIMINATED AGAINST AT WORK, WHAT CAN YOU DO?
Employment discrimination or harassment based on a mental health condition is illegal under both state and federal law. For most people experiencing discrimination or harassment at work, the first step is to follow your employer’s own reporting procedures – provided there are any.
If you have to take legal action, it’s helpful to show that you made every reasonable effort to deal with the discrimination or harassment situation before you resorted to legal action.
If a California employer discriminated against you, harassed you, or terminated you because of your mental health condition, and if you have followed your employer’s own reporting procedures, but no action has been taken – where can you turn?
HOW CAN AN EMPLOYMENT RIGHTS LAWYER HELP YOU?
At that point, you will need to meet with an experienced San Francisco employment rights attorney. The attorney will review the details of your claim and determine if you qualify to take legal action.
If you have suffered illegal employer discrimination or harassment because of your mental health condition, your attorney will negotiate with the employer for reinstatement, back wages, and additional damages.
Out-of-court settlements are the way that most employment discrimination cases are resolved. Settling out-of-court saves all of the parties involved a significant amount of time, money, and inconvenience.
However, if the employer denies that illegal discrimination or harassment took place, or if the employer fails to negotiate in good faith, your attorney may recommend taking the case to court and asking a jury to award you the damages – and to give you the justice – you deserve.
HOW CAN EMPLOYERS HELP?
Employers in California should encourage their employees who are suffering with mental health issues to get help. In fact, many California employers now sponsor a “Mental Wellness” program to help employees reduce stress and anxiety by encouraging exercise and healthy lifestyles.
Employment discrimination or the workplace harassment of anyone dealing with a mental or physical condition or disability is simply unacceptable in California, and if you are a victim of employment discrimination or workplace harassment in this state, the law is on your side.
Get the legal help you need – and contact an experienced San Francisco employment rights attorney at once – if you are targeted for discrimination or harassment by any employer in this state. You have the right to fair treatment, and you have the right to an attorney’s help.