An Interview on Mental Health Disabilities & Employment: A Guide to Laws, Rights & Advocacy
About 10 percent of the population of the United States suffers from a medical condition that qualifies as an “invisible” disability. According to the 1990 Americans with Disabilities Act (ADA), a person with a disability “has a physical or mental impairment that substantially limits one or more major life activities.”
Invisible disabilities include conditions that are physical and/or mental in nature and may involve chronic physical conditions (pain, fatigue, dizziness) as well as mental health conditions. In fact, individuals with mental health disabilities form a significant portion of the population protected by the ADA.
The U.S. Office of Disability Employment Policy (ODEP) states that work can be essential to mental wellness “contributing to a sense of purpose and well-being.” However, for individuals affected by mental health conditions to be successful at work, the ODEP stresses the importance of workplaces that foster a “mental health-friendly work culture.” So what does it mean to foster such an environment?
First, it takes an understanding of what mental health disabilities are, the laws and protections that exist, and resources available to both employees and employers.
What is a Mental Health Disability?
The American Psychiatric Association publishes the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), a reference book of mental health conditions. The DSM-5 catalogues psychological disorders and their symptoms, potential causes, treatments, statistics, and current research.
Types of psychological disorders listed fall into the following categories: anxiety (OCD, PTSD), childhood (ADHD, Autism, Tourette’s), eating (Anorexia, Bulimia), mood (Major Depressive Disorder, Bipolar Disorder), cognitive (Dementia, Alzheimer’s), personality (Narcissistic, Borderline, Avoidant), schizophrenia and other psychotic disorders, and substance-related (Alcoholism, Drug Addiction).
With about 25 percent of the population suffering from a diagnosable mental health disorder in the United States, it is surprising that there is not more discussion of what this means in terms of employment. Though not all of the 57 million individuals with mental health conditions in the U.S. are limited in their daily activities to the extent that their illness is considered a disability, it is likely that a mental health-friendly work culture could be one of the ways to prevent such illnesses from progressing into one—in addition to creating a more inclusive and supportive work culture for all.
In the following interview, a spokesperson from the U.S. Office of Disability Employment Policy (ODEP) graciously responded to our questions in September 2020.
An Interview with a Spokesperson from the U.S. Department of Labor
Started in 2001, the Office of Disability Employment Policy (ODEP) is a non-regulatory federal agency housed in the U.S. Department of Labor. ODEP’s primary objective is to eliminate barriers to the employment and training of individuals with disabilities. To achieve this, ODEP develops and influences policies and practices that increase both the quantity and quality of work opportunities for people with disabilities, including individuals suffering from mental health disorders.
ODEP-supported projects that address mental health disability and employment include the Employer Assistance and Resource Network on Disability Inclusion (EARN), the Job Accommodation Network (JAN), the Employment First Community of Practice (CoP), and the Visionary Opportunities to Increase Competitive Employment (VOICE) initiative.
Some of ODEP’s most recent advocacy efforts for individuals with mental health disabilities at work include the creation of the Mental Health Toolkit: Resources for Fostering a Mentally Healthy Workplace (in partnership with EARN); hosting the first Excellence in Disability Inclusion Awards; hosting a panel discussion with experts from Mental Health America and other organizations to kick off the 30th anniversary of the ADA; and the continuation of the Employment First Community of Practice (CoP) professional development series of webinars and training on strategies for increasing employment for people with mental health disabilities.
What are common misconceptions regarding individuals with mental health conditions and employment?
One big misconception relates to the prevalence of mental health conditions. According to the National Alliance on Mental Illness (NAMI), one in five American adults experiences a mental health condition each year. That means the vast majority of workplaces include people with mental health conditions.
Consequently, it’s important for all employers to foster mental health-friendly work cultures. These cultures are good for employees because they ensure workers with mental health conditions receive the support they need to thrive in the workplace. Employers also win because their employees are at their best on the job.
This issue of prevalence also hints at another misconception, which is rooted in the stigma surrounding mental health conditions. Even though many people experience mental health conditions, negative stereotypes still exist. This leads to a spiral of silence in which people with mental health conditions think they are alone or are not recognized as a significant part of our workforce. And, just like for all people, work is a key part of their health, identity, and financial well-being.
Few people are not touched by this issue in some way, whether directly or indirectly. The more employers create mental-health friendly work cultures, the more employees will feel recognized and valued.
In addition to the ADA and FMLA, what other laws or policies should employees with mental health conditions and their employers be aware of?
The Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) provide important supports and protections to employees with mental health conditions.
The ADA makes it unlawful to discriminate in employment against a qualified individual with a disability. One of the key non-discrimination aspects of this protection is the requirement for employers to provide reasonable accommodations for employees and job seekers with disabilities. Reasonable accommodations are adjustments to a work setting that make it possible for qualified employees with disabilities, including those with mental health conditions, to perform the essential functions of their jobs.
The FMLA can help these employees take leave, when necessary, to seek treatment. In some circumstances, leave may also be considered a reasonable accommodation under the ADA.
The Rehabilitation Act of 1973 (Rehabilitation Act) is another law that prohibits disability discrimination. Specifically, it prohibits discrimination on the basis of disability in programs conducted by Federal agencies, in programs receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors. This last protection is captured in Section 503 of the Rehabilitation Act, which provides similar protections to those under the ADA, but applies to federal contractors. These are organizations that do business with the Federal Government.
Section 503 also requires that federal contractors take affirmative action to recruit and retain qualified people with disabilities and work toward an aspirational utilization goal of 7 percent. Each company’s progress toward achieving its disability inclusion goals is gauged through self-identification rates. Federal contractors must invite applicants for jobs to voluntarily self-identify their disability (on a prescribed form) both pre- and post-offer, and then these employers must invite their employees to self-identify at least every five years.
Self-identifying is voluntary, but in some cases, organizations are encouraging qualified people with disabilities to apply for jobs and self-identify so they can benefit from increased diversity and show progress toward their commitment to disability inclusion.
Another important law is the Mental Health Parity and Addiction Equity Act. This law generally prevents group health plans and health insurance issuers that provide mental health and substance abuse treatment benefits from offering those benefits on a more limited basis than traditional medical or surgical benefits. In other words, there must be parity between the benefits provided for mental health and physical health.
Workers with mental health conditions should also be aware of the Workforce Innovation and Opportunity Act (WIOA). Section 188 of WIOA prohibits discrimination, including on the basis of disability, against individuals who apply to, participate in, work for, or come into contact with programs and activities that receive financial assistance under Title I of WIOA.
This includes programs and activities operated by one-stop partners (both required partners and additional partners) to the extent that these programs and activities are being conducted as part of the one-stop delivery system. The one-stop delivery system is also referred to as the American Job Center (AJC) delivery system and the one-stop Career Center system.
The regulations implementing Section 188 specifically require that reasonable accommodations be provided to qualified individuals with disabilities in certain circumstances. Moreover, both WIOA and the implementing regulations include obligations that all Title I of WIOA financially-assisted programs and activities be physically and programmatically accessible.
These are just a few of the laws providing protections to workers with mental health conditions. For more information and resources on this topic, workers can visit DOL’s webpage on Mental Health.
What are some examples of workplace practices inclusive of people with mental health disabilities? Are these the same as “reasonable accommodations?”
Reasonable accommodations, in addition to being a legal requirement for qualified individuals with disabilities, are one example of an important practice to promote an inclusive work environment. There are many others.
To help employers cultivate a welcoming and supportive work environment for employees with mental health conditions, we, in collaboration with our Employer Assistance and Resource Network on Disability Inclusion, developed an easy-to-follow employer policy framework called the “4 A’s.”
Although order is not important, the first “A” stands for awareness, which simply means that it’s important for employers to conduct training and education about mental health issues and take action to foster a supportive workplace culture.
Then, our second “A” is accommodations, which means providing employees with mental health conditions the support they need to perform their jobs. Common examples include flexible work arrangements and/or schedules. These flexibilities and supports can help employees perform their best and help employers meet their legal obligation to provide reasonable accommodations under the ADA or Section 503 of the Rehabilitation Act and other disability nondiscrimination laws and regulations.
The third “A,” assistance, refers to assisting employees who have, or may develop, a mental health condition, something many employers do through formal employee assistance programs (EAPs).
The final “A,” access, encourages employers to assess healthcare plans to ensure or increase coverage for behavioral/mental health treatment, something shown to benefit not only individuals, but also companies by way of the bottom line.
According to the American Psychiatric Association, more than 80 percent of employees treated for mental health conditions report improved levels of efficiency and satisfaction at work.
To learn more about the “4 A’s,” employers and employees can visit AskEARN.org/mentalhealth.
What can mental health providers, particularly counseling professionals, do to support their clients’ success at work?
Mental health providers are a key part of the equation. Obviously, different circumstances will dictate the best course of action, but there are two dimensions to supporting clients’ success at work.
First, it is important to understand the importance of work. Work is a key social determinant of health. It contributes to a sense of purpose and well-being. This is not different for people with mental health conditions.
Second, mental health providers should stay up-to-date on the rights of people with mental health conditions in the workplace. This will help them provide better advice to their clients and help them connect their clients to the resources they need, for example, resources related to requesting accommodations.
What is the Office of Disability Employment Policy (ODEP) currently focusing on with regard to disability employment advocacy and mental health?
We are cross-disability in nature, but mental health remained a large focus of ours for the past few years, including in the resources EARN (Employer Assistance and Resource Network on Disability Inclusion) developed—such as the 4 A’s framework mentioned earlier.
The challenges brought to daily life in 2020 spurred a renewed focus on worker mental health, with many businesses committing or recommitting to fostering a mental health-friendly workplace. It is our hope that this commitment will remain in a post-pandemic world.
Recently, we’ve been talking to and collaborating with a number of mental health advocacy groups to get a sense of the trends they’re observing and understand the messages needed to promote positive mental health in the workplace.
We continue to focus on technology and the future of work for people with mental health conditions and all types of disabilities, including physical and sensory disabilities. This focus gained significance in recent months due to the move to widespread telework.
Today, a whole generation of people with disabilities has grown up under the ADA, and their entry into the workforce coincided with dramatic changes in the way we access and perform work, across occupations and industries. From computers to smartphones to video conferencing platforms, the power of technology has truly transformed the workplace—especially in recent months. Thanks to advances in accessibility, these innovations are empowering many people with disabilities to contribute and work to their fullest potential.
But we are still a long way from true universal design—meaning that technology brought to market is accessible to all users right out of the box. This goal requires an understanding of accessibility by technology developers, and an industry-wide commitment to making digital accessibility an imperative, not an afterthought. So, ODEP continues to work with the tech industry to ensure that emerging technologies like autonomous vehicles, artificial intelligence, and extended reality are built with accessibility in mind.
Through our Partnership on Employment and Accessible Technology (PEAT), for example, we are engaging industry leaders, entrepreneurs, academics, advocates, government leaders, and others in order to advance an accessibility mindset and harness important innovations that will benefit all workers, both with and without disabilities, in all kinds of workplaces.