Hidden And Unseen Disabilities & Serious Health Conditions

Posted on June 10, 2012 in
Many people are unaware that the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA) protect those with both physical and mental disabilities. Maryland law also has expansive coverage, including protections for applicants and employees with hidden and unseen disabilities. The ADA states expressly that a mental impairment that substantially limits one or more major life activities is covered under the ADA. 42 U.S.C. § 12102. The ADA regulations and EEOC guidelines specifically explain that a mental impairment can be any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. See full explanation here. Mental illness is certainly something that can interfere with your ability to complete the tasks of daily living and courts across the country have found that the PTSD, depression, and bi-polar disorder among others are disabilities under the ADA. Learning disabilities can also be covered, as well as severe attention deficit disorder and asperger's related syndromes. The U.S. Equal Employment Opportunity Commission just announced a significant monetary settlement with a large national employer with facilities in Maryland. The employer was found to have discriminated against an applicant who was denied employment because of his disability, asperger's syndrome, an autism spectrum disorder. See EEOC press release. Similarly, an employee may be able to take time off from work due to mental illness. The FMLA requires employers to hold an employee's job for them if they have a "serious health condition that makes the employee unable to perform the functions of the position of such employee" for up to 12 weeks. 29 U.S.C.S. § 2612. A serious health condition includes mental illness. As defined in the FMLA, "serious health condition" means "an illness, injury, impairment, or physical or mental condition that involves - (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. § 2611(11). To know whether or not you work for an employer who is covered by the FMLA you may want to consult with a lawyer; typically, only employers that have more than 50 employees within a 75 mile radius will be required to provide unpaid leave to employees. In addition, you must have worked for that employer for at least a year and have worked for at least 1250 hours in that year to be covered by the FMLA. Importantly, under some circumstances, FMLA leave can also be taken on an intermittent basis for doctor's appointments and therapy. The bottom line: Mental illness is not something that is easy to manage and can become more difficult because of the stigma and lack of understanding that surrounds it and the hardships on the job. However, if you suffer from mental illness or an unseen disability, you may have significant employment legal protections.

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