A New Side to Work Anxiety

American workers have few rights in the workplace, and those afflicted with mental health disorders are among the most vulnerable.  Any worker can be fired, demoted, transferred, etc. at any time for just about any reason.  There are very few areas of refuge: employers can’t discriminate on the basis of race, color, national origin, sex, religion, age, and disability (on the federal level – some states and cities have additional protections, including marital status, sexual orientation, and others).  Mental disorders can qualify as disabilities, but workers who suffer from them often miss out on the legal protections available to them. 

Approximately 57.7 million American adults experience a mental health disorder, from a single bout with depression to schizophrenia, in any given year.  http://www.nami.org/Content/NavigationMenu/Inform_Yourself/About_Mental_Illness/About_Mental_Illness.htm.  That is about one in every four adults.  Not every one of these individuals is too disabled to work, and many of them need only a temporary leave.  But for many reasons these workers do not get that accommodation.

The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability and requires reasonable accommodations of disabled employees, and the Family Medical Leave Act (FMLA) requires some employers to provide some employees with up to 12 weeks of unpaid leave if it is medically necessary.  The FMLA applies only to employers with 50 or more employees (the ADA applies to employers with 15 or more employees), and only to employees who have worked for that employer for at least a year and worked at least 1,250 hours during the year before the leave. 

A recent decision by the federal Court of Appeals for the Eighth Circuit held that an employer did not violate the ADA or FMLA when it invited an employee with an anxiety disorder to resign with two weeks of severance pay rather than granting him medical leave or a reasonable accommodation.  (The case is called Kobus v. College of St. Scholastica, Inc.: http://www.ca8.uscourts.gov/opndir/10/06/091583P.pdf).  The employee made two big mistakes, according to the court: first, he did not inform his employer that he had a disability or a medical condition that required leave; second, he did not request a leave. 

On the surface those sound like good reasons: it isn’t reasonable to expect an employer to provide leave or another accommodation to an employee that it doesn’t know is ill, or to provide leave to an employee who doesn’t ask for it.  But if you dig a little deeper this case reveals how the laws protecting ill and disabled workers let people with mental disorders fall through the cracks.

First, is it really any surprise that an employee wouldn’t tell his employer that he was suffering from a mental disorder?  There is an enormous stigma in this country (at least outside of Manhattan) to admitting that one is seeing a therapist or is on psychotropic medication.  Often people don’t tell their family or close friends these things.  There is even less reason for them to risk the repercussions of telling their employers, who might question their ability to do their jobs or even demote or fire them rather than keep a “crazy” person around.  The employee in this case testified that he didn’t tell his employer that he was taking medication because he “wasn’t real proud of that fact.”

But the employee did tell his employer about his illness.  After he was diagnosed with an anxiety disorder and prescribed Paxil, he “began” (suggesting he did it more than once) telling his supervisor that he was suffering from anxiety and stress.  In the recent past the poor guy had endured “the illness and death of [his] mother after an apparent medical mistake; the serious illness of his brother; his ex-wife’s cancer diagnosis; and news that his son had been diagnosed with bipolar disorder and had subsequently dropped out of college.”  Despite all this, the court focused on the fact that he did not tell his employer that he was taking medication for his condition or that he was depressed.  In contrast the Equal Employment Opportunity Commission, which is the federal agency responsible for enforcing the ADA, recommends that “an employee’s request for time off because he is ‘depressed and stressed’” should be “sufficient to put the employer on notice that the employee is requesting reasonable accommodation,” which could include a leave of absence.  My guess is that “anxious and stressed,” which is what the employee in this case told his supervisor, would be sufficient for the EEOC, meaning that the employer did know that the employee was ill.  But the federal appeals court can choose to ignore the EEOC’s recommendation, and so it did.

Second, the employee did request a leave, specifically a “mental health leave.”  But he had no vacation or sick leave available, which illustrates an important gap in the laws: employers are not required to provide paid vacation or paid sick leave (although in this case he may have just used all his leave).  Even for salaried employees, an employer can choose not to provide any paid leave at all.  On top of that, the 12 weeks of FMLA leave (assuming one is even eligible for them) are unpaid.  And, the FMLA allows employers to require an employee to provide a doctor’s certification that they are ill and cannot work, but seeing a doctor requires health insurance (in this case, the employee said that he did not have a doctor and therefore could not meet the requirements for FMLA leave), cash, or both.  A sick employee who should take a leave but can’t afford to forego the income might rationally choose not to request a leave.  That doesn’t mean the employer should lose a lawsuit because the employee didn’t request leave.  It means that the laws need to change so that people don’t have to choose between their health and four weeks of pay plus the cost of a doctor’s visit. 

The disabled (whether through a physical or mental disorder) are among the populations least able to absorb that loss of income.  32% of disabled adults fall below the poverty line.  http://www.spotlightonpoverty.org/ExclusiveCommentary.aspx?id=0e1ca1a2-e921-4349-866b-273a2216c664.  But people with mental disorders may be the worst off financially.  People “in the lowest socioeconomic strata are about two and a half times more likely than those in the highest strata to have a mental disorder.” http://www.surgeongeneral.gov/library/mentalhealth/chapter2/sec8.html#introduction, Those disorders are serious: approximately 80% of people with depression find that it interferes with their ability to work.  http://www.cdc.gov/nchs/data/databriefs/db07.pdf

Workers need more protections in the workplace, and the most vulnerable need them most of all.  For that to happen, we must change the laws.  Individuals with mental disorders need more acceptance in society so they can ask for what they need and exercise their rights.  For that to happen, we must change our minds.  Visit www.nami.org for more information.

2 thoughts on “A New Side to Work Anxiety

  1. A New Side to Work Anxiety…

    I found your entry interesting do I’ve added a Trackback to it on my weblog :)…

  2. Devil's Avocado says:

    There’s another side to this, which unfortunately I know about from personal experience.

    In a previous life, I worked on a team of software developers at a company with 200-300 people (therefore subject to all the rules). We were a team of about 10, and we were working hard to compete against the big boys in a very competitive market, where a little stumble could have disastrous consequences, the kind of consequences that would have resulted in all of us looking for new jobs.

    We hired a new dev, who had done very well in our technical interviews, and although he seemed little eccentric, that’s par for the course in our business, and we didn’t really think anything of it. On reflection, there was very little in his background to suggest that he’d worked on a team before, and we would soon learn why that was. At first he did reasonably well in terms of his responsibilities, but as time went on his code became messy and the changes that he was making to the codebase in general were hackish and dangerous. This is also not so unusual in a new developer. It’s a situation that comes up often, and is normally addressed by a technical lead helping the dev in question to do things the right way, and it’s part of how we get better as developers. In this case however, our manager (who was one of the smartest, and most decent people I have ever worked for), ran up against a wall. The dev in question refused criticism, and any request to change his ways was met with lengthy arguments about the philosophy of software development. Again, this is a common situation especially in developers without much team experience, but it’s a situation that must be addresed, because a lack of care on the part of one dev can lead to a breakdown in the cohesiveness and care on the part of the team in general.

    Eventually, our manager insisted that every change the new guy made had to be code reviewed prior to being checked into the shared code base. Again, a common solution, and often recommended as a general practice, although it was not the practice on our team except in very particular situations. This worked, for about a week. Then our new guy decided he didn’t like doing the code reviews, and just kept on checking in, and breaking things, as he had been doing before.

    It went on like this for awhile, a month or two maybe. Dev would break things, manager would become more frustrated, everyone on the team would be impacted by the mess, and the code review rules would be reiterated. It was no use, he simply would not comply, and would not show any care towards the code. At this point, the manager tried to start the termination process, which was convoluted and involved many HR specialists and lawyers, as is often the case at companies of this size. Immediately we ran into a snag, the individual in question was a diagnosed manic depressive, and as such we were required to “make accomodation” before he could be terminated. This was disheartening for all of us, because in truth we’d be making accomodation in good faith for months, out of common decency, rather than fear of litigation. Now the threat of legal action came along and we were forced to do it in a formal way. The individual apparently could not trust himself not to check in without code reviews, so we had to take away his write-access to the code, so that every one of his checkins could be managed by someone else. This was a huge burden on an already overtaxed team. Then, I assume as some sort of revenge, he began behaving aggressively toward other members of the team. He understood his situation better than the rest of us did, and he knew precisely what he could and could not get away with. Basically, it seemed that he could do whatever he felt like, as long as when he was told to stop, he stopped. He was very creative, and did a number of unacceptable things. He wrote offensive things about me, other members of our team, and our manager on technical discussion forums which he knew we frequented. He speculated on the merits of the stock price on an internet investment board (we were publicly traded and the SEC frowns on behavior like that). He displayed hard core pornography as his desktop background, and discussed in great detail the various acts he’d performed with his girlfriend in the company showers. He made obscene phone calls to the home of another of our developers late at night, and one time, he took his dick out and waved it at me. On a technical level, there was very little damage he could do without access to the codebase, but he continued to write code which was unusably bad, and which was far beneath the ability we knew him to have. If he was told to stop, he would stop, but then he’d come up with some new torment for us. He was very creative. In general, he made the team a very unpleasant place to work.

    This went on for about six or eight months. At the end of it, the company offered him an early vesting of his option grant in exchange for his resignation, and he left. Prior to this absurd abuse of the law, I don’t think there was a single person on that team who would have hesitated to hire him knowing full well what his disability was. As I said earlier, this is a field full of eccentrics and anti-social people and we’re very tolerant. After the events of that year however, I guarantee you that there is noone on that team who wouldn’t think twice the next time someone came along who might fall into such a category, and in that sense the law, while benefiting the individual i dealt with immensely, actually does a tremendous disservice to anyone with a similar disability who might come after him.

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