A Practical Guide to Exercising Your Rights Under the ADA
Please see the disclaimer below, which essentially says that I am not a doctor, nor an HR legal expert. This is a “practical” guide based on how I have seen the ADA work in practice, along with some tips on how to leverage these regulations for yourself.
The prospects of finding a job and then fitting in at that new job can be overwhelming for most of us. I am 52 years old and I still get nervous every time I enter a new workplace, worrying about everything from doing my job well to simply wanting to be liked. I thought this nervousness would fade away as I got older, but I just find new things to worry about like being perceived as the old guy wearing dad-jeans and telling corny jokes.
For those of us with a mental health disorder, those uncomfortable feelings often get amplified. Then, we tend to complicate things further with worries about our disability and how people will act if and when they find out. Some of us would even prefer to hide or mask our disability so that we get treated “normally” like everyone else, whatever that means. The most normal part about this is that most people experience these feelings.
My goal here is to help you understand a little about how companies think about employees with mental health disorders and disabilities.
In particular, the focus here is on your rights under the Americans with Disabilities Act (“ADA” or “the Act”). For someone with any kind of disability, the ADA is an incredibly important piece of legislation; however, if you don’t know how to affirmatively exercise your rights, it’s kind of useless. So this is a brief explanation of how to exercise your rights in a way that should make your work life better and more enjoyable.
I have clinical depression that tends to present as anxiety in the workplace. Under extreme distress, I have experienced panic attacks and have become irrational. Back when this happened regularly, I didn’t understand that I was dealing with an untreated illness and I certainly didn’t think about telling my boss that I needed an ADA accommodation. In fact, I didn’t fully learn about the ADA until I started holding roles as an employer.
That brings us to the first important point: Companies as employers tend to focus their efforts on limiting their liability under the Act and employers do not have an affirmative obligation to make sure you fully understand your rights. That means that they understand this way better than you, so let’s shift some of that power back to you, ok?
The ADA was passed in 1990 as an "equal opportunity" law for people with disabilities. The ADA.gov web site has tons of materials, but rather than break down the specifics of the legislation, let’s start with an example.
The first time I faced a question of employer liability, my CEO asked me to handle firing an employee who may have had a mental health disorder.
It wasn’t clear what the exact disability was and it was never discussed openly but it seemed obvious enough for a few people to raise the question. When I asked the company’s attorney if we faced liability for releasing this employee in light of what we could see as an apparent mental condition, he asked me two questions that I now realize every attorney asks in this situation:
" 1. Did they tell you they have a specific disability? and, 2. Did they ask for a reasonable accommodation to be able to perform their job with that disability? If not, then you have nothing to worry about. "
Think about what the attorney was saying with his questions. UNLESS YOU PROACTIVELY TELL YOUR EMPLOYER THAT YOU HAVE A DISABILITY AND THAT YOU NEED AN ACCOMMODATION, THEY DO NOT NEED TO DO ANYTHING. So make sure you use the word “disability” and the word “accommodation” so that they know you are exercising your ADA rights. Corporate HR and legal systems have certain words they watch for and think of these as the “launch” words for your rights, and for the ADA you need to mention both a disability and the need for accommodation.
With a mental health disability, this affirmative requirement actually makes sense because mental health disabilities are not as obvious as physical disabilities. Employers can’t be expected to guess at the mental health of their employees, and they can’t ask directly if the person has a disability so the burden has to be on us as employees.
There are several exemptions written into the act, meaning certain types of organizations (such as churches) are exempt but the one I have seen applied most often is for small businesses of under 15 employees. So, if you are thinking about joining a small business like an early-stage startup, just know that none of this applies because small companies are not required to comply with the Act.
I’ll wrap up here with a few other practical considerations:
- You don’t need to give notice before being hired so I don’t recommend raising this topic until after you have started
- It can be awkward discussing this with your boss, especially when you are new so it is usually best to start with HR in a private conversation
- Most employee handbooks will outline a procedure for notifying the company
- Many managers know very little about this, so even if you start with your boss, don’t be surprised if they seem clueless. When this happens, I recommend getting HR involved.
- As a general rule, the larger the company, the better they will be at handling these conversations
- Progressive companies may be more proactive in educating about rights and more flexible with accommodations
- Email is generally better than verbal when asking for an accommodation and again, use the “launch” words of disability and accommodation. If you discuss this in person with your manager or HR representative, follow it up with an email confirmation.
- During your initial conversation with your boss or HR, you may not know what kind of accommodations to request, and this is OK. It is more important to start the conversation and HR departments are generally well trained at helping after you start the dialogue.
Lastly, a point on being practical.
Don’t think of the ADA as something you are likely to litigate after you leave because in reality litigation is not something you will want to experience, and it will need to be a pretty extreme case to be worth your time. Just think of this as a set of protections that can help make sure that mental health disorders are treated in the same way that other, more obvious illnesses and disabilities are. If you find yourself struggling with your job because of your mental health, then start the conversation of figuring out a reasonable change in working conditions. This can be working at home certain days or limiting certain types of work, or maybe even a change in roles, but just know that you have options.
About the author and disclaimers:
Each situation involving mental health in the workplace is truly unique, so please understand that this article contains only introductory principles on how to navigate the ADA to your benefit. This article does not contain legal advice and if you have specific legal questions about how the ADA applies to your rights either contact your HR department or discuss this with your own lawyer and, doctor or therapist (therapists are really helpful in coaching for these conversations). You can also reach the author with questions or feedback at firstname.lastname@example.org.
Gary Traynor (he, him, his) graduated from UNC-Chapel Hill with a JD/MBA in 1997, worked in investment banking for 6+ years in NYC, and spent the rest of his career in CEO, COO or CFO roles with early-stage software startups in the Northeast. More recently, Gary has begun teaching entrepreneurship with a focus on balancing diverse psychological profiles when companies are scaling for rapid growth. His framework for balancing the most complicated aspects of health, work, and relationships is referred to as "5 Gravities."