Depression in the Workplace

Canadian Woman Loses Disability Benefits Over Facebook Pictures

2009-11-23T14:28:00.001-08:00

The intersection of law and social media fascinates me. Courts, judges and lawyers are trying to figure out how to deal with these new forms of communication. There are great concerns over privacy, as employers have fired employees for postings they have made on their private blogs.

So a story from Canada caught my eye this weekend. It was about a woman who was receiving disability benefits for the past year and a half for major depression. It is common when someone is on disability benefits for the insurance company to call and talk to the employee and ascertain if she is still disabled and whether or not the benefits should continue. In a case of depression, the representative might ask questions about the person's moods and activities, and request the person's medical records. Based on the information gathered, the company decides whether the person is still disabled.

What has gathered attention in this case is that the company made the decision that the woman was no longer disabled and thus no longer entitled to disability benefits based, in part, on pictures posted on her Facebook page. The pictures showed her on a vacation at the beach, and at a Chippendale's male stripper show. The insurance company reasoned that if you go on vacation and go out for a good time, you aren't suffering from depression and thus aren't disabled.

It shows a narrow view of depression and mental illness. People who are depressed do go to the beach, to a wedding or out to go shopping. They don't all shut themselves in their homes. The woman's doctor also said that "having fun" would be good for her health and help her recover. So much for that advice.

You also wonder how the insurance company got access to her pictures. Many people do accept friend requests from people they don't know, but you wonder if there was any deception in gaining access to her personal information. The story also make you (or at least me) think twice about what we post online, even on our personal Facebook page. It is all, potentially, in the public domain.

Mental Health Parity Act: Know What That Means For You and Your Beneifts

2009-11-08T12:02:00.000-08:00

A new federal law, the Mental Health Parity Act, will take effect on January 1, 2010 and could have widespread implications for the benefits you receive from your insurance plan for mental health treatment.

As of Jan. 1, the law requires that group plans covering more than 50 people provide the same level of care for mental health and substance abuse problems as for medical ones. Right now, most employer plans provide less coverage for mental health — say, by limiting the amount of visits you can make to a provider or setting higher annual deductibles than for medical care.

New York Times published just law week an interesting article about the Mental Health Parity Act and what it might mean for you. The article also includes useful advice for how to navigate the changes. The article can be accessed by clicking here.

Enforcement Guidance from EEOC on Psychiatric Disabilities

2009-11-05T13:28:00.000-08:00

Earlier this year, the EEOC issued Enforcement Guidelines on psychiatric disabilities and how employers should deal with employees or applicants who have "mental impairment" that can be defined as a "disability" under the Americans with Disabilties Act. The Guidelines are meant to provide recommendations and advice on how to deal with the many individuals with mental illness who are employed in the workforce.

An important point that is raised in the Guidelines is that not all "mental illnesses" as defined by the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (now the fourth edition, DSM-IV) is a "disability" for purposes of the ADA. For example, the DSM-IV lists several conditions that Congress expressly excluded from the ADA's definition of "disability."8 While DSM-IV covers conditions involving drug abuse, the ADA provides that the term "individual with a disability" does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of that use.9 The DSM-IV also includes conditions that are not mental disorders but for which people may seek treatment (for example, problems with a spouse or child).10 Because these conditions are not disorders, they are not
impairments under the ADA.

As of yet, there are no per se disabilities, so even an individual with depression might not be disabled under the ADA, depending on the facts. A disability under the ADA has to "substantially limit" a major life activity such as sleeping, caring for oneself or working. It also needs to be permanent or long-term in order to be a "disability." Thus, an example is made in the Guidelines of an employee who was distressed by the end of a romantic relationship and was able to continue his daily routine, although he sometimes became agitated at work. The agitation lasted about a month and the condition was diagnosed as "adjustment disorder" with limited duration. This individual is not 'disabled" under the ADA because there is no "substantial" and permanent or long-term impariment to any major life activity.

In contrast, the EEOC provides an example of an employee has had major depression for almost a year. He has been intensely sad and socially withdrawn (except for going to work), has developed serious insomnia, and has had severe problems concentrating. This employee has an impairment (major depression) that significantly restricts his ability to interact with others, sleep, and concentrate. The effects of this impairment are severe and have lasted long enough to be substantially limiting.

The Guidelines provide a wealth of valuable information for both employers and employees. Employers need to be familiar with their obligations and requirements when faced with a disabled individual (for example, whether they can ask about a psychiatric disability during a job interview, or whether a part-time schedule or leave is a reasonable accommodation) and employees need to be aware as well of their rights under the law so that they can take action when they might be violated or in risk of being violated.

2008 Showed Dramatic Jump in EEOC Charge Filings

2009-11-02T07:10:00.000-08:00

2008 showed a dramatic increase in the number of charges filed with the EEOC, or Equal Employment Opportunity Commission, the federal agency with jurisdiction over discrimination in employment. The EEOC investigates and prosecutes cases under Title VII, the ADEA (Age Discrimination in Employment Act) and the ADA (Americans with Disabilities Act).

2008 had the largest number of discrimination charges filed since 1997 -- 95,402. In 2007, there were 82,792 charges filed. That is about a 10% increase. The economic downturn is partly to blame. Complaints of discrimination rise as more people are laid off and are concerned that their race, disability or gender played a role. Of the charges filed in 2008, 20.4% were for disability.

The full statistics can be accessed here.

Reasonable Accommodations for Depression and Other Mental Illnesses

2009-10-29T08:28:00.000-07:00

The ADA, as well as the Minnesota Human Rights Act, requires all employers with 15 or more employees, to provide reasonable accommodations to a qualified individual with a disability. A "qualified individual" with a disability is one who, with or without reasonable accommodations, can perform the essential functions of his or her job. This is one reason why it is important to have a written definition of all job at your business.

There are no set definitions of what are reasonable accommodations, and what are unreasonable ones. They vary depending on the nature of the industry, the size of the employer, the individual's disability, and the accommodation requested.

The EEOC, and courts, have agreed that job restructuring and leave are reasonable accommodations. Both may be relevant to an individual suffering from depression, who might need time away from work to aid recovery. Job restructuring can be eliminating non-essential functions from an employee's job duties, or allowing a part-time schedule, if not overly burdensome to an employer. Changes in a supervisor's managerial style have been suggested as being reasonable accommodations, such as more feedback or more or less supervision. A leave of absence with no return date to work is not a reasonable accommodation, although a short-term leave is. What constitutes "short term" depends on the circumstances of each case. There is no easy answer. However, many courts have held that a short-term leave of 3 months, such as that allowed under the Family and Medical Leave Act, is reasonable.

A request for an accommodation should always be documented. And it should be followed by what is known as the "interactive process," a back and forth between the employee and the employer to find an accommodation that works for both sides. An employee isn't entitled to his or her first choice of an accommodation, but rather one that will allow him or her to perform the essential functions of the job and that isn't a burden to the employer.

The interactive process often is quite easy, such as acquiring an ergonomic keyboard for an employee with carpal tunnel syndrome, or allowing an employee with depression to take time off each week for appointments with therapists. Other times, the process can be quite complicated and sometimes leads to an impasse, meaning that the employee can be terminated if an accommodation can't be found that would not constitute an undue hardship for the employer.

Understanding Depression

2009-10-27T06:39:00.001-07:00

When I am out doing lecutres or trainings I frequently hear this comment; "We all get depressed, don't we?" The answer to this question is no we don't all get depressed. Let me explain. During the course of most days we all feel various emotions that are part of the human experience. On any given day you might feel angry, sad, happy, hopeful, nervous, excited, or a whole host of other feelings. These feelings, particularly when negative do not define an experience such as being depressed, but rather are the feelings we can all expect to have as part of being alive.

Depression on the other hand is defined by a set of characteristics that are physical, emotional, and cognitively based. Depression is set apart from the normal feelings we all have by its duration and intensity. For example you may feel sadness over an event, but if you aren't suffering from depression that sadness will gradually wane and your ability to continue functioning in your everyday life is not too greatly impacted. Whereas someone who is depressed may experience a bout of sadness for weeks on end and rather than waning the feeling of sadness intensifies and severly limits the person's ability to complete their daily activities.

In addition to feeling down and sad, other criteria for depression include a loss of interest in activities preveiously enjoyed, unintended weight gain or loss, inability to concentrate or make decisions, serious sleep disruption, feelings of worthlessness or unfounded feelings of guilt, significant feelings of agitation or psychomotor retardation (you feel like you are slogging through mud), recurrent thoughts of suicide or death, and fatigue or loss of energy.

At minimum we would expect you to have at least 5 of these symptoms with one of the required symptoms being either significant feelings of sadness or loss of interest in previously enjoyed activities for a minimum of two weeks. We would also expect that this functioning represented a change in your previous way of functioning and we would want to make sure you didn't have any other underlying medical condtion that might be causing your depression.

As you closely examine the criteria used for making a diagnosis of depression you can see that those criteria clearly are different from the ups and downs we all feel from day to day. If you become aware of someone who is depressed or being treated for depression, keep this in mind the next time you want them to just "snap out of it" or "get over it".

In good health!
Mark

EEOC Publishes Proposed to Employment Provisions of ADA

2009-10-26T16:28:00.001-07:00

Just about a month ago, the EEOC issued its proposed regulations for the implementation of the employment provisions of the Americans with Disabilities Act (ADA). To refresh your memory and in case you aren't up to date on the ADA, this federal law was recently amended and dramatically changed. The Americans with Disabilities Amendments Act (ADAAA) was signed into law in August 2008 by the former President Bush and went into effect on January 1, 2009. The purpose of the Amendments Act was to expand the coverage of the ADA and return it to its original intent, after a series of Supreme Court decisions that severely limited the protections offered.

One of the big changes in the Amendments Act was an expanded definition of who is disabled. The basic definition remains the same (an individual with a physical or mental impairment that substantially limits a major life activity), however changes in the way that this definition is interpreted are intended to give greater protection. One way that this is done in the ADA is through an expanded, non-inclusive list of "major life activities" that can be substantially limited in order to qualify an individual as disabled. There are "outside" activities such as walking, working, talking, breathing and seeing, as well as "inside" activities, major bodily functions such as the digestive, endocrine or vascular system that can be limited as well. Section 1630.2(j)(5) of the proposed regulations include a list of conditions that would be per se disabilities. These include autism, cancer,
cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis and muscular dystrophy, and individuals with depression, bipolar disorder, obsessive-compulsive disorder, posttraumatic stress disorder, or schizophrenia.

No courts have ever stated that a medical condition was automatically qualifying as a disability, so this proposed regulation is a big step forward for plaintiffs who in the past struggled to show that they were disabled (in fact, prior to the passage of the ADAAA, about 97% of the disability cases were decided in favor of the employer, often on the point of whether an individual was disabled). I think this proposed reg is an excellent way to ensure that the spirit and intent of the Amendments Act is not again eviscerated by the courts.

Italy and Disabilities

2009-10-23T14:41:00.000-07:00

I lived in Rome, Italy for 12 years. Having lived abroad for many years (I have also lived in Mexico and Santiago, Chile), I have come to appreciate many aspects of life in the U.S. We have things very good, and often don't realize it until we travel to another country.

Italy, for example, is a tremendously difficult country to live in if you are disabled. There are no elevators in older apartment buildings, and even in newer ones, the elevators aren't wide enough for a wheelchair to fit. The Italian equivalent of the ADA (whatever that might be...I'll have to ask an Italian attorney colleague) doesn't have the same teeth that our ADA does.

Sidewalks present similar difficulties. The ramps that we are accustomed to are just beginning to be constructed in the larger cities like Rome and Milan. But then you have the problems of how Italians park. They routinely park on the sidewalks, since parking spaces there are as rare as they are in Manhattan.

I found this picture on a travel blog www.irintech.com with a typical picture of an Italian car parked right in the middle of a sidewalk. Probably won't get a ticket. Imagine being a parent trying to push a stroller, or an individual with a walker, motorized scooter (which I have seen in Italy) or a wheelchair. I often wondered how disabled and elderly people even managed in Italy. I still don't know.

Depression in the Workplace and the Law

2009-10-23T14:19:00.001-07:00

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

Why Depression?

2009-10-22T09:53:00.000-07:00

Many individuals have asked us why would we focus on the issue of depression in the workplace. The easy answer is there is no easy answer. Depression is a complex medical condition that impacts multiple aspects of a person's life and one area in particular it negatively impacts is the person's professional life.

Current estimates suggest upwards of 21 million Americans suffer from depression in any given year and over 70% of those suffering are working. Doctors and lawyers frequently jockey back and forth for the lead position of highest rates of depression and suicide. Other professions such as Sales, Marketing, Accounting, IT professionals, Retail, and Healthcare Providers experience high rates of depression.

In addition to the high prevalence rates of depression, ignoring depression in the workplace is costly. Estimates place lost productivity due to depression accounts for upwards of 50 billion dollars annually. There are other significant healthcare costs associated with depression because untreated depressed persons use twice as many healthcare dollars than their non-depressed colleagues. In addition to these cost, those with depression can be negative, pesimisstic, and difficult to work with and get along with. These characteristics impact relationships in the office with colleagues and certainly outside the office with clients.

The redeeming news is that nearly 80% of those suffering from depression report an improvement in their symptoms and quality of life when they receive proper care. The sobering reality is that most individuals with depression either refuse to seek care or are receiving inadequate care.

The workplace offers an opportunity to identify and address this prevalent, costly, and devastating issue and that is why Karen and I are focusing our efforts on addressing depression in the workplace.

In good health!
Mark

Disclosing Depression in the Workplace

2009-10-12T14:55:00.000-07:00

Employees are in a bind. They can be protected by anti-discrimination laws like the Minnesota Human Rights Act and the Americans with Disabilities Act only if they disclose to their employer that they are disabled. In some cases, there is no need, as a disability is obvious. But in cases of depression or other mental health issues, the disability isn't obvious at all. An employer can only discriminate against a qualified individual with a known disability, so that rasies the question of whether an employee should disclose a disability and when.

This video (from the UK) shows what shouldn't be done -- for both the employer and the employee. The employee discloses that he suffers from depression before accepting employment and the employer lets his mental health stereotypes show -- from calling the man a "nut" to hiding the letter opener.

Although extreme, the video does provide a good message of what employers shouldn't do when faced with an employee who reveals that he or she suffers from a disability.

Depression in the Workplace

2009-10-06T11:00:00.001-07:00