Best Ohio Disability Discrimination Attorney Answer: Is depression considered a disability under the Americans with Disabilities Act? Can I lose my job because I have depression and anxiety or are those conditions considered disabilities under the ADA? Is it wrongful termination to fire someone because they have mental health issues? Can I use FMLA to get medical leave for my PTSD?
Depression is one of the most common mental disorders in the United States. According to the National Institute of Mental Health, nearly one in twelve adults in the United States had at least one major depressive episode in the past year. This is likely an under reported statistic since many who suffer from depression suffer in silence. As famous singer, Demi Lovato, who suffers from being bipolar, said, “I think it’s important that people no longer look at mental illness as something taboo to talk about. It’s something that’s extremely common, so basically everyone is connected to this problem and this epidemic. The problem with mental illness is people don’t look at it as a physical illness. When you think about it, the brain is actually the most complex organ in your body. We need to treat it like a physical illness and take it seriously.” I always thought highly of Lovato since she starred on Disney Channel’s Sunny with a Chance and Camp Rock. But, she has been absolutely even more amazing speaking out about mental and emotional health issue, letting the rest of America into her private struggles to let children through adult understand that help is available. (See videos here, here, and here).
Congress recognized mental illness and the strong hold it has on Americans when it enacted the Americans with Disabilities Act (“ADA”). Under the Americans with Disabilities Act, a disability is defined as any physical or mental impairment that limits a major life activity. While physical disabilities are much easier to define, mental and emotional disabilities can be more difficult to understand and are often complex. The ADA recognizes mental illnesses, including clinical depression, post-traumatic stress disorder (“PTSD”) as a disability. However, not everyone who has depression is protected. It’s always annoying as an attorney whenever there is no hard and fast rule. Lawyers like rules, it makes it easier for everyone to see the “clear line” in the sand of what will work, what won’t, who’s protected, who isn’t, etc. When an employee alleges an ADA claim because they have depression, courts will look at each case, individually, to determine whether it fits within the ADA’s guidelines. To be protected under the ADA, the employee must have at least one of the following:
- A physical or mental impairment that prevents them from performing a major life activity;
- A medical history of suffering from a physical or mental ailment; or
- The perception that a person suffers from a physical or mental impairment.
Further, under the ADA, an employer doesn’t have to employ an individual when they can prove that they denied employment or terminated employment for safety reasons. An employer can justify these safety reasons when it can show that employment of the individual would pose a “direct threat.” This means that the employee must pose a significant risk of substantial harm to the health or safety of the individuals or others that cannot be eliminated or reduced by reasonable accommodation.
When it comes to employees with psychiatric disabilities, the employer must identify the specific behavior that would pose a threat. An individual does not pose a “direct threat” simply by having a history of psychiatric disability or getting treatment for a psychiatric disability. (EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities at p. 219 ([23-1] at p. 17)
It is not enough just to say, because an employee has depression or another mental illness, that employee is a “direct threat” and is not fit for the job. There must be a more specific reason. Employers try to use this broad language to justify discrimination, far more often than our employment discrimination attorneys would care to admit. As our employment discrimination attorneys have previously blogged about, the law protects employees with severe depression who may have suicidal ideations. (See American’s With Disabilities Act: Suicide Attempts, and Can I Be Fired For Having Depression Or Anxiety?.
There is a new case in the Illinois Central District Court right now that demonstrates courts protecting mental disabilities in the workplace. Helen Jenkins worked for Common Place, Inc. for 18 years. During her 18 years, Helen was promoted regularly, and earned pay raises. She was diagnosed with depression two years before she started at Common Place, Inc., and determined to overcome or at least work through her diagnosis, she worked hard to earn a strong employment record. That is, until 2016, when a new executive director started supervising Helen. The new director, Pam Rumba, was quick to criticized Helen and other staff members. Pam, the director, wanted to create a new position in the company because she needed a new assistant. The new position Pam created did not have a firm job description, it was basically an assistant who would do whatever she needed at the time, as she saw fit. Helen posted the new position and then hired an employee who did not have disabilities to fill the role. The man whom Pam hired did not have to go through the normal hiring protocols or process, even though Pam knew that Helen was interested in the job. Helen never got the opportunity to apply or be considered for the position. Pam often showed her disapproval of the staff by making comments like, “I have tons of friends in the district who would come and take your jobs if I called.”
The work environment at Common Place, Inc., became more and more tumultuous after that. It all came to a head when Helen requested spending approval for a purchase needed for work. The items that needed purchased were time sensitive, to which Pam did not respond to Helen. Needing a quick response, and to avoid further conflict with Pam, Helen went to a board member instead to sign off on her spending request. When Pam found out about Helen going to a board member she said, “Who do you think you are, going to the board behind my back! If it’s a fight you want it’s a fight you’ll get! And, I don’t lose!”
Helen was incredibly upset, she left Pam’s office in tears. Helen took a vacation day but felt uncomfortable returning to work. She was soon after, hospitalized for an attempted suicide. This was the first time that Helen had been hospitalized due to her depression. Helen tried to come back to work a few weeks later, but Pam would not let Helen return to work unless she released her medical records. This was not typical protocol. Usually, when a Common Place employee returned to work after a leave of absence, all they were required to produce is a “Return to Work” clearance. However, Pam insisted that Helen couldn’t return to work unless she handed over all her medical records.
Helen refused to turn over her medical records. So, Pam fired Helen. Pam did not give any reason as to why Helen was fired and only told all Helen that she couldn’t come back to work. Helen sued her Pam and Common Place, Inc. As this case is still ongoing, so we don’t know the result yet, however, the big take away from this case is that the Illinois Central District Court reaffirmed that Helen was protected under the ADA. Common Place moved to dismiss the case because they said that Helen wasn’t protected under the ADA. That’s simply not true. The Court held that Helen’s allegations were sufficient to meet the standard required to keep her case alive. Although her depression prior to her hospitalization probably did not qualify as a disability, her current situation was sufficiently severe “to place her depression within the ambit of the ADA.” She was unable to work for several weeks and had to change treatment due to ongoing severity.
As we head into spring time, it’s important to keep in mind that suicide rates increase. If you or a loved one are contemplating suicide, please reach out to emergency services immediately and/or contact the National Suicide Prevention Lifeline at 800-273-8255. You are not alone.
Depression is a harsh and unforgiving mistress. But no one needs the stress of losing their job over something they can’t control. Unfortunately, some employers are closed minded, or can’t empathize with the real dangers of mental illness. This is where our employment discrimination attorneys at The Spitz Law Firm shine. Our employment law lawyers recognize the importance of getting treatment, and the space required for recovery. One of the bravest things a human can pursue is the betterment of themselves and taking care of their mind. If an employee has attempted suicide and had to take time off work to recover from that attempt, Helen’s case demonstrates that courts are willing to protect that sacred time of self-healing and self-preservation.
Although not addressed int his case, taking leave for mental health issues will also be covered under the Family and Medical Leave Act (“FMLA”). Importantly, the FMLA ensures that an employee is entitled to 12 weeks of unpaid leave to care for his or her “serious health condition.” Many of the regulations interpreting the FMLA provide several different circumstances under which mental conditions, as well physical conditions, are protected by law under the FMLA. Under the FMLA, an employee can take the medical leave all at once, say to cover inpatient psychiatric care or counseling; or, alternatively, the employee can take the medical leave on an intermittent basis, which can cover flare ups of mental health issues or to attend treatment as needed. (Can My Boss Control When I Take FMLA? I Need The Top Lawyer In Ohio For Medical Leave Claims!; Top FMLA Lawyer Reply: Can My Boss Require A Doctor’s Note For Each Intermittent FMLA Leave?). Critically, the FMLA prevents your boss, manager, supervisor, or even the owner of the company that you work for from preventing you from taking FMLA approved leave (which would give rise to a claim for FMLA interference) and from retaliating against you for taking medical leave. (See Can I Sue My Boss For Interfering With My FMLA Leave? I Need A Lawyer!; Can My FMLA Leave Count Against Me At Work?).
Thus, if you are suffering from depression, anxiety, PTSD or other types of mental health issues, you should not wait to get help because you risk that you will be fired for taking time off if you are covered under the FMLA.
In order to be covered under the FMLA, you must first work for a private employer with at least 50 employees. Second, you must have worked at least 1250 hours for that employer over the 12 months before you are going to take the medical leave. That works out to an average of about 24 hours per week over the course of a year
Having to live with a disability is difficult enough without worrying about the effect it may have on your job. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. The best option is not to wait. If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA) or are being retaliated against for taking medical leave, you should call the right attorney as quickly as possible. While you focus on your family medical needs, let our FLMA attorneys focus on your medical leave rights. Call our office at 866-797-6040. The Spitz Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.
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