Depression in the Workplace and the Law

When we talk about depression in the workplace with business owners, their biggest concern is legal liability. They ask us what their obligations are under the law. What can and can't they say to an employee about his depression? Do they risk legal liability because they discuss mental health and mental illness with their employees? The best answer that I can give is the one that I was taught my first year of law school and was told is the most common answer in law: it depends.

There are several laws that we have to examine when we discuss depression in the workplace. These laws aren't specific to depression, but rather deal with disability discrimination and leave for health conditions such as mental illness. On a federal level, there is the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). Both have undergone dramatic changes in the past year.

The FMLA only applies to employers with more than 50 employees and provides that all eligible employees (defined as those who have worked more than 1,250 hours in the past year) are granted 12 weeks of job protected leave for a serious medical condition of the employee, of a family member, or for the birth, adoption or foster care placement of a child, as well as some new requirements for leave for military-based reasons. Important issues with the FMLA are whether an employee's health condition, whether depression, bipolar disorder or a knee replacement, is a "serious health condition," and whether the employee has given notice of the need to take a FMLA leave. Under a theory called constructive knowledge, an employer can be found to have knowledge that an employee requested a leave, even though the employee did not specifically request it. More on that in a future post.

The ADA protects employees against discrimination based on disability, and also requires employers to make "reasonable accommodations" to a qualified individual with a disability. The definition of disability has been drastically modified to provide a lot more protection than it did before the law was changed at the beginning of 2009. More on the ADAAA, or the Americans with Disabilities Amendments Act, and the fascinating changes that have come about with these amendments in future posts as well. The ADA only applies to employers with 15 or more employees.

On a state level, most states have some version of an anti-discrimination, civil rights or human rights statute. Alabama is one that does not. Many provide more protection than the federal law does, but none can provide less protection. This is an important principle in federalism. Federal law provides the floor, not the ceiling, of the protections and rights that must be granted. For example, federal anti-discrimination law prohibits discrimination based on race, color, national origin, religion, sex, disability and age. A state cannot choose not to prohibit discrimination based on disability, because that is a protection provided by federal law. However, it can choose to offer more protection, like Minnesota has done. Minnesota protects against discrimination based on sexual orientation and creed, for example.

Anyway, back to state anti-discrimination laws...Minnesota has the Minnesota Human Rights Act. It also prohibits discrimination based on disability, such as mental health illness, but applies to all employers with 1 or more employees. However, it is important to note that the requirement that an employer provide a reasonable accommodation to a disabled individual applies only to employers with 15 or more employees, like the ADA.

Worker's compensation laws sometimes apply when we are talking about an employee dealing with depression, but only in specific instances. More on that one later as well. It is a fascinating topic, and one that could very well change as medical research develops and sheds more light on the physiological bases of depression.

Employers have a lot to know and deal with when dealing with depression in the workplace and employees who are suffering from depression. With my postings on this blog, I hope to clarify some of the difficult aspects of these laws and also explain some of the changes that have been taking place in this area of law as well.

Cheers,
Karen