The bad news is yes, you can be fired for behaviors caused by mental health issues—if those mental health issues affect your ability to do the job you were hired to do. However, it’s risky for an employer to come out and say, “we’re firing you because of your mental health condition,” as that may be considered discrimination under the Americans with Disabilities act.
Instead, in all states but Montana, a company may terminate an employee at any time for any reason using a doctrine referred to as “at-will employment.” However, if your employer terminates you solely because of your mental health, (and you’re otherwise able to do the job they’ve hired you for) they risk being sued (by you) for wrongful termination or discrimination. You can also file a claim of discrimination or wrongful termination.
Is My Employer Allowed to Fire Me for Mental Health Reasons?
Fortunately, the federal government prohibits discrimination based on a mental health diagnosis alone. The American’s with Disabilities Act, for instance, makes it illegal to terminate someone’s employment for having a disability, mental or otherwise, including drug addiction.1 However, they can fire you for behavior that violates company policy. And here’s the catch: the ADA is only enforced against employers who have more than 15 employees.2 That means if you work for a small employer, they might discriminate against you due to a mental health issue and you’d have little recourse.
Let’s say you work for a restaurant and miss a day of work because you’re too depressed to get out of bed, or you work at a retail outlet and are late because you have to deal with a child who is acting out at school due to mental health issues like attention deficit or defiance disorder. A small employer might let you go. They can’t afford to have any “no shows” or they’ll lose business.
Further, the ADA doesn’t force employers to keep employees on staff who can’t do the job. For instance, if you’re hired as an actress, and your anxiety causes you to miss performances, the ADA won’t protect you. Similarly, if your social anxiety makes it impossible for you to meet your sales quota or you act out with verbal aggression against customers due to your PTSD being triggered, the company has every right to terminate your employment under a company policy violation or job performance issue.
Can I Take FMLA Leave for Mental Health Issues?
Under the Family Medical Leave Act (FMLA), an employer is required to provide you with time off to deal with your own or your family members’ medical issues and that includes mental health time off.
But like the ADA, there are limitations. Firms with fewer than 50 employees don’t have to abide by the FMLA.3 Before you risk getting fired for taking time off for a mental health issue, it’s helpful to see if your company has an FMLA program or offers paid sick leave. Read our article to learn more about taking time off work for mental health.
What If My Mental Health Issue Is Affecting My Job Performance?
If you believe your mental health issues will affect your job performance you have every right under the ADA to request “reasonable accommodation.” You could also request FMLA time off to address the issue you are having. Some states, like California, have additional laws to support those with mental health issues including substance abuse and domestic violence.4 Thirteen states require employers to let you take sick leave (paid or unpaid), including time off to deal with mental health issues.5
You first have to let the employer know what mental health issue you are facing and then ask for the reasonable accommodation needed to do the job you were hired to do. Or, ask for the time off you need under the FMLA or your paid time off (PTO) program, which is offered by over 65% of employers.6
Let’s say you’re hired as an accounting assistant, but due to your depression and anxiety disorder, you get overwhelmed and flustered when managing multiple task requests at once. You can ask your manager for a reasonable accommodation such as a task management tool, or a daily meeting with your supervisor to help you prioritize and stay focused.
ADA accommodations support mental issues just as they do physical disabilities —consider a person in a wheelchair in that same job. They could ask for the doorframe to be widened, or for a lower desk. The same is true for FMLA. If your employer gives a co-worker three weeks off for knee surgery, you’d be entitled to that same amount of time off for a psychiatric treatment program.
In many cases, those with mental health issues have no trouble doing the job itself, but due to their mental health condition and required treatment, they need time off work, or flexible work schedules to go to therapy visits and med checks. Those are examples of reasonable accommodations.
The trick to staying employed while managing mental health issues is to be able to do the job you were hired to do, in spite of your mental health diagnosis.
What Is a Reasonable Accommodation and How Do I Get One?
A reasonable accommodation is an official term under the ADA that basically requires employers to make changes to the workplace to allow workers with disabilities, including mental disabilities, to have a level playing field with non-disabled workers.7
In practice, each reasonable accommodation is specific to the person based on their individual needs. An individual with vision impairment will have very different needs for reasonable accommodation than a person managing a mental health condition like social anxiety.
Examples of reasonable accommodations for mental health include:
- Time off for therapy appointments for themselves or dependents
- Flex scheduling so the employee can complete work when they feel their best
- Part-time work to allow an employee to care for a mentally ill child
- A week’s unpaid time off to attend a treatment program
- Remote work to reduce stress from commuting or social anxiety
- A private work location for someone distracted by loud noises due to PTSD
Some companies ask candidates to let them know what reasonable accommodations they need during the hiring process. But you can let an employer know at any time. Larger firms are more likely to have an HR department and a “reasonable accommodation” request form. Smaller companies may have simpler processes, such as to notify your manager of your need or send your request to HR by email.
The smallest of firms may have no process at all, and may not even be aware of ADA requirements. In that case, you may need to educate them about your condition, your rights, and your request. Just keep in mind that a smaller firm may deny your request if they consider it a business hardship. For example, you’re not likely to get a month’s time off to attend rehab if you’re in a three-person firm and you’re the only sales and service rep.
You can learn more about reasonable accommodations in the article, Mental Health Discrimination in the Workplace.
Can I Keep My Mental Health Issue Private?
You can keep your mental health issue private. If you have no need for reasonable accommodation and you can do your job up to performance standards, there is no need for you to disclose your mental health issue to your employer. Frankly, it’s illegal for your employer to ask about it if you don’t bring it up.
They may, however, ask about your behavior. For example, if you’re easily angered, overly fearful, or emotional at work, your employer may sense something’s up. In that case, it’s up to you to decide if you want to disclose your underlying mental health issue.
The benefit of keeping your mental health issue private is that you don’t risk judgment or bias from your peers, employers, and clients who may not understand mental health problems. However, you miss out on the support you’re likely to get, especially if you need a reasonable accommodation to do your job.
I Was Already Fired. Now What?
If you believe that you were illegally discriminated against due to your mental health issue, you have the right to submit a claim to the local EEOC field office.8
You also have a right to file a lawsuit. However, whether you prevail will depend on several factors, such as the size of the firm as well as what documentation you have as compared to the documentation your employer has.
For example, let’s say you lashed out at a co-worker, got drunk at a company party, or cried about your problems to a client. To you, it’s a mistake. But to your employer, it may be a violation of company policy, and they can fire you for that, also proving that it’s not discrimination and not an ADA violation because you signed the employee handbook and were aware of the rules.
For Further Reading
If you or a loved one are dealing with issues surrounding mental health in the workplace, these resources might help:
- US Department of Labor (DOL): Office of Disability Employment Policy
- Center for Disease Control (CDC): Workplace Mental Health
- National Safety Council: Mental Health in the Workplace
- NAMI National Alliance on Mental Illness: Stigma About Mental Health Issues in the Workplace
- USA.gov labor laws
- How to Accommodate Employees with Mental Illness
- Mental Health America
- National Alliance on Mental Health