5 Ways to Protect Your Rights

Whether it is “returning to back to normal” or “the new normal” you have rights for your emotional and mental health within the workplace or working from home. Mental Health Discrimination is common, but illegal. Here is what you need to know to protect your mental health rights at work and receive fair and consistent treatment.

1. The Sooner, The Better

Life happens. Everyone will experience emotional distress within their lifetime, whether it is related to burnout, grief, health complications, anxiety, depression, etc.  The most effective strategy to gain support is to communicate your needs. The sooner you communicate your needs, the better. Unfortunately, many people opt to voice their distress during negative consequences (e.g. write ups) after their unsuccessful attempts to “mask” or “push through” their difficulties. Though support can be given at any time, it is in your best interest to ensure you have the most protection you need from Day 1.

2. You Don’t Have to Over Share

When you are ready to request support, keep it straight to the point. “There are condition(s) that are preventing me from performing essential functions of my job.” You may feel like you have to explain yourself further or your employer may request additional information such as specifying the condition. Please note, you may refrain from fulfilling the request and you are protected within that right.  Employers should not be asking for explicit information regarding your condition. After your statement, they are required to begin the ADA or accommodations process or refer you to a Human Resources (HR) representative. If you don’t feel comfortable having this exchange with your direct supervisor, it is permissible to speak directly with your HR representative. It is recommended however, to alert your direct supervisor of current proceedings.

3. Documentation is Important

A diagnosis is not required; however, documentation from a clinician is necessary for accommodations. Typically after the initial disclosure request for accommodations, a good faith accommodation is provided. The good faith accommodation is meant to extend immediate support to employees and permit reasonable time to obtain documentation from a licensed professional. If documentation is not obtained by the completion of the two-week period, the employer is permitted to return to standard conditions.

If documentation is received, it will be processed through a HR representative. The documentation will outline the reasonable accommodation request from the clinician and that will vary dependent on the individual’s needs and relevant essential duties. These can include, but are not limited to, a service animal, longer or more frequent breaks, change in weekly schedule or shift time, additional recovery time (after panic attacks), supportive supplies (e.g. larger display screen) etc. It is strongly encouraged to collaborate directly with your clinician regarding the accommodation request, because you know your essential job functions the best. You also can make accommodation recommendations directly to the HR representative as long as they do not compromise your job duties.

4. You Have Options

In addition to ADA reasonable accommodations, you have supportive options.

FMLA provides job-protected, unpaid leave to tend to medical conditions (e.g. personal injury, personal health) or to care for a family member for up to 12 weeks. In order receive FMLA, you must satisfy the eligibility requirements including being a full-time employee for at least 12 months (your employee handbook will detail full eligibility requirements). The leave can be continuous for 12 weeks or intermittently applied within weekly or monthly work shifts. Though your leave is protected, it is strongly encouraged to adhere to your company’s attendance policies by communicating changes in your schedule to your direct supervisor.

Short-Term disability provides the same protection as FMLA, however it is paid leave. Speak with your HR Representative or refer to your employee handbook for eligibility requirements.  

EAP is a highly under-utilized, employee benefit program. It provides a set number of free, confidential counseling sessions in many areas not limited to work life balance, domestic issues, financial assistance, grief, childcare, stress management, and will and estate planning. Full confidentiality is applied to these sessions and no information is shared with your direct supervisor or employer. EAP is provided by a licensed health provider and a referral can be made to an outside licensed mental health professional once free sessions are complete.

5. Document, Document, Document – Mental Health Discrimination

Mental Health discrimination in the workplace is very common and it is also illegal and unethical. You must advocate for yourself to ensure you receive fair and consistent treatment. Below are some examples of mental health discrimination in the workplace to be mindful of:

Mental health discrimination describes differential treatment due to mental health conditions. For example, being passed over for a promotion due to concerns about your anxiety and panic attacks or being excluded from training sessions due to social anxiety.

Harassment describes physical, verbal, or emotional abuse directed at a person because they are different. For example, mocking physical symptoms of anxiety, turning red, stuttering, tears, etc.

Retaliation describes reactionary behavior meant to punish an individual for a behavior. For example, being assigned duties outside of essential functioning and being written up for non-compliance, or being excluded from staff meetings and labeled as a troublemaker.  

If you believe you have experienced mental health discrimination in the workplace, be sure to DOCUMENT the incident and speak with your HR representative immediately. You many also contact the U.S Equal Employment Opportunity Commission (EEOC) or U.S. Department of Labor (DOL) if you do not receive proper action from human resources.

When: When did the incident occur? Specify the date and time.

Where: Where did the incident take place? Was it a public or private location?

What: What was said? How did the incident begin and end?

Who: Who was there? Identify yourself and the assailant(s). Were there any witnesses?

How: How was anything impacted by the incident? Changes in responsibilities or assignments? Any retaliatory behavior such as writeups or transfers? How did you leave feeling about the incident, has this impacted your work?

Documentation does not guarantee a specific outcome, but it provides essential details to consider during the evaluation.

For more information regarding your mental health rights in the workplace, please see the links below.

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