Responding To Mental Illness in Your Workforce: Following the Law
In Part 1 of this series, Leading a Culture Change, we talked about specific steps you can take to create a workplace that responds to mental illness in a compassionate, fair and realistic way. Here in Part 2, let’s also talk about how to respond in a way that adheres to the spirit and word of the law.
Employment Law vs. Disability Law
As you know, all employment law is designed to protect employers, as well as employees. However, people with disabilities have long felt that employment law left them out in the cold.
After many years of advocacy, Congress passed the Americans with Disabilities Act (ADA) in 1990 to protect all people with physical and behavioral health disabilities. While the passage of the law was significant, its implementation has been difficult and has resulted in hundreds of lawsuits brought against employers for not just stigma, but outright discrimination. These lawsuits have been extremely destructive to all parties and have resulted in executives paying exorbitant amounts of money to protect their organizations.
All of this could be avoided if everyone understands the law, which was designed to protect both the employee and his or her employer. Much effort went into ensuring that employees have fair warning if performance becomes an issue and that employers have recourse if the employee needs more flexibility than a company can realistically provide.
The ADA in Reality
Many managers and supervisors do not understand the law, and some people have false information about what it does and does not mandate. A clear and accurate understanding of the ADA will help you, your leadership and your management understand how to respond to mental illness in your workforce.
It will also help your employees who manage mental illnesses, as well as others who wonder why some people seem to get special treatment when, in reality, they’re simply exercising their legal rights.
Education about the law — and how it plays out in real life — is critical to creating the fair and legal workplace you want. The best source is www.ada.gov, hosted by the United States Department of Justice and written in language that non-lawyers can understand.
The Choice to Disclose and the Right to Accommodations
The crux of the law is the opportunity for people to disclose their diagnosis, which is their personal choice, and to request accommodations. These are things their employer can provide that would enable them to fulfill the fundamental duties of the job, as carefully stated in their job descriptions.
Many people with mental illnesses choose never to disclose their diagnoses and maintain their performance without ever requesting an accommodation. Others believe that, without an accommodation, such as more flexible hours or a quieter workspace, they won’t be able to perform. The law protects these people, but only if they directly and formally disclose their diagnosis to management. The supervisor is bound by the law to validate the need for the accommodation by getting the employee to provide a note from a mental health professional qualified to determine the severity of the employee’s symptoms.