“I have mental illness and I’m afraid it will hurt my job. Should I keep it to myself?”

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“I have mental illness and I’m afraid it will hurt my job. Should I keep it to myself?”

April 6, 2018

Lía Fiol-Matta, Esq. and Ty Hyderally, Esq.

It is often difficult to tell your employer you need to be absent or require an accommodation because of an emotional state or mental condition, such as depression, posttraumatic stress disorder, bipolar disorder, specific learning disabilities or other mental impairments. Unfortunately, these conditions carry a heavy stigma and are generally misunderstood, no matter how efficient and productive an employee may be. The good news is that employees have rights that protect them against discrimination in these situations. We often refer to “psychiatric disability” and “mental illness” as one and the same. The term “mental illness” is usually used in a medical context to describe a variety of conditions having to do with emotional and mental health while the term “psychiatric disability” is usually used in a legal context when referring to impairments that are protected under several laws.

Employees with mental illness and psychiatric conditions are protected under several federal laws, mainly the American with Disabilities Act (ADA) that defines disability as a physical or mental impairment that substantially limits one or more life activities, including working. Your condition may be chronic or temporary. In addition, even if you don’t have a condition now, you cannot be discriminated against because of a record of having had a mental or psychiatric condition in the past, nor can an employer treat you differently or take adverse action against you because they believe you might have a psychiatric disability.

You don’t need to tell your employer that you have a mental or psychiatric condition unless you require a reasonable accommodation to perform your job. An accommodation is any change in the work environment or the way you do your job that would allow you to efficiently perform your duties and enjoy the same opportunities as other employees. Some examples of reasonable accommodations under the ADA for persons with mental conditions or psychiatric disabilities are: flexible work schedules to accommodate appointments and therapy sessions, quiet office space or devices that help neutralize noise, frequent short breaks, working from home, modifying job responsibilities and a change in the management style of the supervisor. An accommodation of last resort may be a leave of absence.

While employers don’t have a right to know about an employee’s psychiatric disability and it is your choice to disclose it or not, your employer is only required to make a reasonable accommodation if they know about the disability. If a reasonable accommodation will help you do your job and without it you would be negatively affected, you employer must provide it unless it is very difficult or expensive to do so.

Your employer must keep any information you share about your mental condition confidential but may ask you to put your request in writing and describe your condition and how the accommodation will help you. In any situation, you have the right to privacy regarding your mental condition, as well as the right to work without fear of harassment or a hostile work environment because of your condition.

New York and New Jersey laws also protect persons with mental conditions or psychiatric disabilities against discrimination in the workplace, mainly through the New York State Human Rights Law and the New Jersey Law Against Discrimination (LAD). The LAD covers any mental, psychological or developmental disability that prevents normal bodily or mental functioning. It also prohibits discrimination based on someone’s perception that you have a mental disability or because of a disability you may have had in the past. It is illegal for employers to discriminate against a qualified employee or job applicant based on a psychological or mental disability in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

As a New Jersey employee, you have the right to work in an environment that is free from discrimination because of a mental or psychiatric disability. New Jersey employees also have the right to report violations of the LAD they reasonably believe their employer is engaging in, without fearing that they will be terminated or otherwise retaliated against as a result.

This blog is for informational purposes only.  It does not constitute legal advice, and may not reasonably be relied upon as such.  If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts.  This blog may constitute attorney advertising.  This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction. 



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