mental health and disability

“Abled does not mean enabled. Disabled does not mean less abled.” ― Khang Kijarro Nguyen

In the U.S., the law requires that any employer provides a reasonable level of accommodation to a job applicant or employee with an disability, unless the outcome would cause a significant expense or other difficulty for the employer. The Americans with Disabilities Act also covers discrimination that could occur when someone is treated less favorably because they have a history of disability (such as a previous depressive episode), a mental or physical impairment (whether actual or only perceived), or because they are in a relationship with someone who lives with a disability.

Work conditions

It is against the law for an employer to discriminate against disability when it comes to every aspect of employment. This includes hiring and firing, pay, promotions, layoffs, job assignments, fringe benefits, training and any other terms of employment.

Any worker that suffers a personal injury and/or permanent disability as a result of an incident that occurs in a workplace is also covered in the event of discrimination pertaining to the case.

Harassment

Harassing an employee or applicant because they have a current or previous disability is illegal. Harassment includes behaviors such as making offensive remarks regarding a person’s disability. Whilst the law doesn’t prohibit general teasing or isolated, minor incidents that are not serious, when it becomes severe and frequent and creates an offensive or hostile work environment, it is deemed as harassment and is against the law. This is also the case when it results in adverse decisions being made about someone’s employment status or terms.

Reasonable accommodation

It is a requirement by law that employers provide a reasonable level of accommodations to applicants and employees who have a disability, unless it would cause them significant expense or difficulty.

Any change to the way things are usually done, or changes to the working environment may be deemed as a reasonable accommodation. For example, making the environment wheelchair accessible or providing an interpreter for a hearing or vision impaired person.

Whilst the federal anti-discrimination laws don’t extend to the accommodation of employees who must care for a disabled family member, the Family and Medical Leave Act (FMLA) may enforce an employer to take any necessary steps.

Undue hardship

When making the accommodations would cause undue hardship to the employer, they are not required to provide it.

This means that if the accommodation would be too expensive or challenging given the employer’s financial resources and the size of the business, then it may be deemed that it would cause undue hardship. That is not to say that an employer can refuse to accommodate the needs of a disabled person purely on the basis of cost. They are also not obligated to fall in line with the preferences of the disabled person, should more than one accommodation option work to solve their challenges.

Definition of disability

The Americans with Disabilities Act does not protect everyone with a medical condition when it comes to discrimination. Protection is dependent upon a person being qualified for the job and having a legally definable disability.

Having a disability can be demonstrated in one of three ways:

  • If a person has a physical condition or a mental health issue that significantly limits an important everyday activity (such as talking, walking, hearing, seeing, learning or control over major bodily functions)
  • If a person has a history of living with a disability (such an illness in remission, or a previous major depressive episode or history of an anxiety disorder)
  • If a person is subjected to an adverse action regarding the terms and conditions of their employment. The personal must also be believed to suffer with a minor mental or physical impairment that is expected to last six months or more, (regardless of whether they do in fact have such an impairment)

Disability-related questions and medical exams

An employer may not ask disability-related questions to a job applicant before extending an offer to them, nor request that they undertake a medical exam. They may, however, ask the applicant if they are able to perform a job and how they would do this.

Once a job offer is made, the law allows it to become conditional upon the applicant answering certain questions related to their disability and/or successfully passing a medical examination. This is only applicable, however, if all new employees in similar roles are subjected to the same process.

Generally speaking, once the applicant is employed, an employer can only ask disability-related questions or request a medical exam if documentation is required to address a request for an accommodation to be made. It is also considered appropriate if an employer has reason to believe that the employee is unable to successfully and safely perform their job due to their condition.

It is also a requirement by law that an employer keep all personal medical information and records separately and strictly confidential.

Get more information

If you have mental health issues or a disability – or both – you are not alone. Remember if you need help, help is available.

If you think you are being discriminated against, you can access information on the Americans with Disabilities Act on 800-514-0301 or consider filing a charge of discrimination with the federal Equal Employment Opportunity Commission (EEOC), or an antidiscrimination agency in your state.

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