The ADA, Depression, and You - Know Your Rights

The Americans With Disabilties Act (ADA) and Depression

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What should you know about the Americans with Disabilities Act and depression?. Istockphoto.com/Stock Photo©monkeybusinessimages

What are your rights according the the Americans with Disabilities Act (ADA) with regard to your diagnosis of depression? What important changes to this ACT in 2008 expanded the definition of disability and made it possible for people with "invisible" conditions such as depression to be protected even when their symptoms are controlled by medications, lifestyle changes, or therapy?

What is the Americans with Disabilities Act (ADA)?

The Americans with Disabilities Act (ADA), came into effect on July 26, 1992.

This important legislation prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions and privileges of employment. This act applies to employers with 15 or more employees.

In 2008, and amendment was added to this act that affects those living with depression and other "invisible" conditions, greatly broadening the definition of who may qualify.

Are You Covered by the Americans With Disabilities Act?

The ADA, along with a 2008 amendment, state that persons qualify for disability if they:

  • Have a physical or mental impairment that substantially limits one or more major life activities (and/or bodily functions as of the 2008 amendment);
  • Have a record of such an impairment; or
  • Are regarded as having such an impairment.

    What is a Major Life Activity?

    The ADA requires that a person have a substantially limited ability to perform one or ,or major life activities (or bodily functions discussed below), but what are these activities? Major life activities according to the Act include (but are not limited to) caring for yourself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

    What are Major Bodily Functions?

    The 2008 amendment widened the definition of "substantially limiting activities" by including the operation of major bodily functions. This includes (but is also not limited to) functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

    What is a Mental Impairment?

    A mental impairment for the purposes of the ADA includes mental or psychological disorders (as defined by the DSM-IV) such as major depressive disorder, bipolar disorder, anxiety disorders (panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia, and personality disorders. Even if these conditions are episodic in nature—do not cause impairment continually but on and off—they still qualify, as long as the disorder is considered a long term problem.

    To be an impairment does not mean simply having one of these diagnoses, but must include showing that the diagnosis substantially limits one or more major life activities or bodily functions.

    Diagnoses that may be covered in the DSM-IV but do not qualify as mental an psychological disorders for the purposes of the ADA include adjustment disorders, relationship troubles, or illegal drug use. In addition, behavior "traits" such as irritability or stress are not included. Disorders that are included in the definition of disability are those that are permanent or have potentially long-term effects, not those that are temporary such as the break up of a relationship.

    How Long Does a Mental Impairment Need to Be Present to Qualify?

    Usually a condition has to be present for several months before it qualifies as a long-term problem.

    How is "Substantial Limitation" Determined?

    A determination of substantial limitation does not always have to be made by an expert. Sometimes the credible testimony of the person seeking disability, his or her family and friends, or co-workers may be enough.

    What if the Psychological Impairment Improves with Therapy or Medications?

    As noted below, the original ADA intended to cover people even when they were being successfully treated with medications and /or therapy as long as they had a substantial impairment when they were off of these medications or without these therapies. A few cases changed this, which led to the 2008 amendment overturning these cases. The 2008 amendment made clear that the decision about disability should be made without considering "mitigating measures" such as medications and therapy.

    History of the American Disabilities Act and Depression

    That American Disabilities Act, as noted above, was established to protect those living with disabilities. In 1999, the Supreme Court ruled ( Sutton v. United Airlines, Inc., Murphy v. United Parcel Service, Inc. and Albertson's Inc. v. Kirkinburg) that the determination of whether a person has an ADA "disability" must take into consideration whether the person is substantially limited in performing a major life activity when using a "mitigating measure." What that meant is that even though clinical depression is a permanent condition, if you were able through medications and therapy to perform major life activities without difficulty you would not have met the ADA's definition of "disability." For example, if someone was under treatment with medications and therapy, in order to be protected they would have had to prove that their job performance was still compromised by illness despite being in treatment. This is no longer the case; a 2008 amendment overturned these court decisions.

    The 2008 Americans with Disabilities Amendments Act - How Did the Act Change?

    The 2008 Americans with Disabilities Amendments Act greatly expanded the disability definition for people with depression as well as other disabilities that aren't readily visible. This act was brought about to provide a clear mandate reinstating the protection available under the ADA and to reject the incorrect requirements brought into effect by cases such as those mentioned earlier. These court cases had narrowed the scope of the ADA, eliminating many people who congress had originally hoped to protect with the ADA.

    As of 2008, mitigating measures may no longer be considered in making the decision over whether or not a person is substantially limited in performing major life activities. The act also increased the definition of major life activities to include bodily functions, for example, the function of the nervous system and endocrine system.

    In addition to including bodily function, this act made it clear that an impairment is still a disability if it is episodic or goes into remission, as long as it limits a major life function or bodily system when active. In other words, the determination should be made regardless of the effect of mitigating measures such as medication. lifestyle changes, or therapy.

    Drug and Alcohol Abuse

    Because self-medication with drugs and alcohol is so common among those with depression, it is important to note that the ADA does not cover those with a substance abuse problem. Any employee with a substance abuse problem can be held to the same standards as other employees. If your employer does not know about your depression and then later discovers a substance abuse problem you will not be protected.

    In other words, someone who engages in substance abuse will not qualify for disability unless he has an underlying mental or psychological condition which leads to these behaviors.

    What Are Your Rights Under the Americans With Disabilities Act? - Reasonable Accommodation

    Under the ADA, employers are required to make what is called a "reasonable accommodation" to those with a known disability if it would not impose an "undue hardship" on the operation of the employer's business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources, and the nature and structure of its operation. An employer is not required to lower quality or production standards to make an accommodation.

    Examples of reasonable accommodation for those with depression might include:

    • Clear delineation of performance expectations,
    • Schedules which incorporate flex-time,
    • Part-time positions or job sharing,
    • Time off for scheduled medical appointments or support groups,
    • The use of break time according to individual needs rather than a fixed schedule,
    • Physical arrangements (such as room partitions or an enclosed office space) to reduce noise or visual distractions,
    • Providing organizers, checklists, or a white board to help with organization and breaking down a project into parts or to aid memory.
    • Extending additional leave to allow a worker to keep his or her job after a hospitalization,
    • Allowing workers to phone supportive friends, family members, or professionals during the work day,
    • Allowing a worker to work at home periodically to accommodate fatigue or allow telecommuting.
    • Joint meetings between the employer, supervisor, and job coach or other employment service provider.

    Questions you can ask yourself in considering what accommodations may be helpful include:

    • What is your most difficult task at work? What would make it easier?
    • Does any part of your job make your depression symptoms better or worse?
    • Is there anything in your workplace that causes distraction?
    • Would a modified work week be helpful, for example, decreasing your hours?
    • Is telecommuting possible with your job, either full time or on certain days?

    Disclosure With Your Employer

    A key concept for those with depression is that the disability must be known. Employers are forbidden by law to ask about the existence, nature or severity of a disability. They may only ask the employee about their ability to perform the job functions. This puts the responsibility on the employee to confer with his employer about the existence of his illness and what accommodations he or she may need. A job offer may only be conditioned on the results of a medical examination if that examination is required for all entering employees in the same job category regardless of disability. The information obtained must be handled according to confidentiality requirements specified in the Act.

    Because of the stigma and misconceptions surrounding mental illness, disclosure may be a difficult choice for the employee to make. Unless an employee feels a high degree of trust and support from his supervisor, he may opt to "tough it out" rather than risk disclosure. If you are struggling to fulfill your job obligations due to your illness this may, however, limit your options. By requesting accommodations, you may be able to avoid poor performance reviews or even a lost job. Even if you do lose your job after your illness becomes known, disclosure will help you retain your right to bring suit against your employer. Remember, it's not discrimination if your employer was unaware of your illness.

    Many people are reluctant to either disclose their illness or ask for special accommodations. Keep in mind that the purpose of the ADA is to protect people just like you—people who wish to work at a job but are frightened about how their performance may be affected by their mental health disability.

    If You've Been Discriminated Against

    If you think you have been discriminated against in employment on the basis of disability you should contact the U.S. Equal Employment Opportunity Commission (EEOC) to file a complaint. A charge of discrimination generally must be filed within 180 days of the alleged discrimination. You may have up to 300 days to file a charge if there is a state or local law that provides relief for discrimination on the basis of disability.

    To file a charge of discrimination contact any EEOC Field Offices. These offices are located in cities throughout the United States. If it is found that you have been discriminated against, you are entitled to a remedy that will place you in the position you would have been in if the discrimination had never occurred. You may be entitled to hiring, promotion, reinstatement, back pay, or reasonable accommodation, including reassignment. You may also be entitled to attorneys fees.

    As with disclosure, remember that the ADA is designed to help people like you. Not only are you standing up for your rights when you claim the protection of the disability act, but you are setting an example that will help others with mental illness avoid discrimination due to an illness they never asked to have to cope with.

    Bottom Line on Disability and Depression

    Many people with depression have found little support when considering disability, and court rulings regarding the Americans with Disabilities Act between its birth and 2008 didn't help. Thankfully, the 2008 amendment to the ADA now includes bodily functions and makes it clear that even when someone with depression is doing well with medications, lifestyle changes, or therapy, he or she may still qualify for protection if his or her symptoms without treatment caused disability (and his diagnosis is considered to be a long term condition.) It's likely that this clarification will remove some of the stress experienced by those who were doing well with treatment but knew that their disease could flare and cause difficulties at any time.

    While helping individual people with depression, it's thought by some that the ADA is finally achieving some of its goal—that of effecting true community change by improving employment for many who struggle with mental health conditions.

    Depression is hard enough for people to cope with in the first place as it can be seemingly invisible to someone looking your way. Those who have not lived with depression can't understand what goes on behind the scenes or false smiles. Take a moment to check out these depression coping tips whether you feel your depression qualifies you for disability or not.

    Sources:

    Davidson, L. The Recovery Movement: Implications For Mental Health Care And Enabling People To Participate Fully In Life. Health Affairs. 2016. 35(6):1091-7.

    Petrila, J. Congress Restores the Americans with Disabilities Act to its Original Intent. Psychiatry Services. 2009. 60(7):878-9.

    Petrila, J. Law & Psychiatry: Has the ADA Been Reborn as a Tool of Broad Community Change for People With Mental Disabilities?. Psychiatry Services. 2014. 65(7):847-9.

    U.S. Equal Opportunity Employment Commission. ADA Amendments Act of 2008. 09/28/08. https://www.eeoc.gov/laws/statutes/adaaa.cfm

    U.S. Equal Opportunity Employment Commission. EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities. 03/05/09. https://www.eeoc.gov/policy/docs/psych.html

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