Some people may be high functioning and able to push through for a time, but depression can't exactly be negotiated with. If your mental wellbeing is at odds with your ability to work, you may feel stuck on what to do — tell a boss, or keep quiet? In a tweet that went viral, one person advised telling HR "immediately" as a protective measure.
"It's considered a disability and you can sue if you're [sic] fired for showing any signs of depression (fatigue, hopelessness, etc.)," they wrote. "Companies lose these lawsuits and will not fire you."
Tip: if you’re seeing a therapist & diagnosed for depression, quietly report it to HR immediately. It’s considered a disability & you can sue if you’re be fired for showing any signs of depression (fatigue, hopelessness, etc.). Companies lose these lawsuits & will not fire you.— princess mizzy 🌹 (@hellomizzyy) June 14, 2018
Let's slow things down a little.
Disclosing mental illness to an employer is a tough call: You may get the support you need — but you might later worry about being treated differently by colleagues or looked over for bigger opportunities. While it is true that the Americans with Disabilities Act affords workers some protections against discrimination, the ADA is hardly as strong as Captain America's shield. If someone chooses to disclose a disability (something that is not obligatory), they may have grounds to sue in the event of discrimination — but there are subtler ways to be penalized.
Depression isn't automatically considered a disability, as the author of the tweet suggested, nor are all "signs of depression" ones that employers must accommodate. So, before you rush to tell a manager or human resources, let's look into these questions first.
Is depression considered a disability under the ADA?
To be honest, it depends. "Conditions that involve some type of depression are often characterized as mood disorders," says Beth Loy, Ph.D., principal consultant at the Job Accommodation Network (JAN). Those conditions can include depression, major depressive disorder, bipolar disorder, PTSD, schizophrenia, and personality disorder, and "they may be covered by the ADA if the person meets the definition of disability."
When does depression constitute a disability?
"For a disability to trigger the protections of the ADA, it needs to affect a 'major life activity,'" says Elizabeth Chen, a senior staff attorney with A Better Balance. The ADA Amendments Act (ADAAA) has published a non-exhaustive list of those activities, which include caring for oneself, performing manual tasks, eating, sleeping, concentrating, communicating, and working.
It's important to remember, though, that depression "doesn't always trigger those limitations for all people," Chen says. Plus, documentation will likely be needed — medical proof diagnosing that there is an impairment and a record of its existence. In other cases, depression may be tied to a life event that can be overlooked by the ADA.
"Employers often miss the implications of the ADA when it comes to prenatal and postpartum depression, assuming only that the FMLA applies, without looking to the protections of the ADA," Chen explains.
Do you have to receive a diagnosis from a medical professional and provide documentation to show that you have been a condition, or can you just state that you're seeing a therapist for depression?
Again, disclosing a disability is not required — but you may have to do so if you are asking an employer to provide accommodations. "An employer can ask for documentation of medical conditions, especially if the disability is not immediately obvious," Chen says. "The documentation only needs to establish that the employee has a disability and that they need an accommodation because of the disability."
Loy adds that, per Equal Employment Opportunity Commission (EEOC) regulations, an employer "may require that the documentation about the disability and the functional limitations come from an appropriate healthcare or rehabilitation professional."
What's "appropriate" depends on the disability and the "type of functional limitation it imposes," but she says that may include doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals.
"Documentation should be sufficient if it: (1) describes the nature, severity, and duration of the employee's impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits the employee's ability to perform the activity or activities; and, (2) substantiates why the requested reasonable accommodation is needed."
What kind of accommodations might you receive? And could a company lose a lawsuit for firing employees who disclose their mental illnesses?
Chen says time off might also be deemed a "reasonable" accommodation under the ADA — but it's "particularly crucial to know about the context of some companies' absence control policies when workers are automatically given disciplinary 'points' for missing work."
Last year, an AT&T employee lost a lawsuit for wrongful termination even though she disclosed her anxiety and depression. The judge ruled that the company had done everything it reasonably could to accommodate her and her ongoing, "excessive absenteeism," so they did not violate the ADA.
Well, if an employee does not disclose their diagnosis for whatever reason, and is fired for reasons tied to their illness, do they have legal ground to sue?
Probably not. It is true that "the law does not protect a worker who does not disclose a disability, and where the employer is otherwise unaware of it," Chen says.
Can you be fired after disclosing your mental illness and asking for accommodations?
Under the law, workers with disabilities must be able to "perform the essential functions of their job, with or without reasonable accommodation." Chen says if an employee discloses a diagnosis of depression because their symptoms are getting in the way of doing their work, "it should trigger what is called the 'interactive process,' whereby an employer and an employee work together informally to find some kind of accommodation that works for both [parties]."
As long as the accommodation doesn't cause an "undue burden" to the employer (is too expensive, would disrupt the workplace in a way that impedes work from being done, etc.), it should be provided. But there is no "formula" or standard that defines "undue," and not every accommodation needs to be granted, Chen says — just ones that are deemed reasonable under EEOC guidelines.
Could there be negative ramifications for disclosing to an employer?
Well, sure. "While employers are required to engage in the interactive process, not all employers do so in good faith," Chen says. "In addition, employers may simply deem that any potential accommodations are an undue burden without investigating further."
It is unlawful for an employer to discriminate against a worker on the basis of their disability (perceived or actual, she says), or to retaliate against a worker for seeking an accommodation. A Better Balance has a free hotline for workers who believe they may have had that experience.
It is possible to come out on top if push comes to shove; there have been cases where employers have lost in court for violating the ADA. For example, a video store employee with major depression won his EEOC case in 2012 after he was fired for complaining about the harassment he received at work as a result of his disability.
If you are experiencing anxiety and/or depression and are in need of crisis support, please call the Crisis Call Center’s 24-hour hotline at 1-800-273-8255.