Why should people disclose their illnesses to HR in the workplace?

Employees are not obligated to disclose mental health or other health issues to their employers or the HR of their company. An obligation to disclose may arise only if an employee is seeking accommodation for their mental health issue, seeking a benefit such as sick leave, or if an employee’s disability is impacting their work. Therefore, employees do not need to inform their employers of their medical conditions or disabilities as long as they can perform the essential functions of their jobs without accommodation or medical leave. 

Whenever an employer suspends an employee or removes an employee from a position with an implicit bias due to a mental health condition that the employee would have revealed or would have exhibited, finding legal recourse can be challenging, even establishing that the employee was removed due to their mental health condition might be difficult within the present the legal framework in India. 

However, the state’s constitutional mandate is to protect citizens’ right to live with human dignity. In 2017, the Medical Health Care Act (MHA) was implemented in India to provide efficient mental healthcare to protect, promote and fulfil the rights of people with mental illness. In reality, the implementation of this Act is far from what it intended. The Act was treated as a welcome step because of the decriminalization of an attempt to suicide. The Indian Penal Code 1860 (IPC) saw the attempt to suicide as a crime punishable by imprisonment for a year. The discussions leading to the drafting of the MHA noted that a person contemplating suicide is under mental or emotional stress and, therefore, should not be punished under the law. However, this seems to be the only aspect worth applauding. The Act has not made any substantial difference in the care and well-being of persons with a mental illness. The most fundamental hurdle created by this Act is that it does not cover all persons with mental illness but only those with “substantial disorders.”

The exclusionary nature of this definition prevents many persons with mental health illnesses from supporting this Act. This is especially true regarding the accessibility of opportunity in labour and

employment. While the Right to Life under Article 21 of the Indian Constitution includes the Right to Health, the extension of this concept to mental health is severely lacking in implementation. As stated, the Act aims to safeguard the rights of people with mental illness. However, there is little direction in the legislation to guide those suffering from mental illnesses as they navigate the stigma their condition might bring them in the workplace.

Although the legal landscape for mental illness is still developing, the judiciary’s stance to adopt a socio-legal lens to scrutinize and interpret the scope and provisions of the MHA as laying down progressive jurisprudence. In recent times, the court’s landmark decisions in various cases are a step forward – that mental retardation is different from mental illness, non-conformity towards social norms cannot be considered a mental illness and depression is not considered unsoundness of mind; therefore, it cannot be taken as a defence for crimes. There should be no discrimination between physical and mental illness in providing medical health insurance by insurance companies. A bipolar person can be a judicial officer because merely the fact that they may need medication and treatment throughout their lives or may suffer setbacks from time to time, cannot be a reason to deny equal opportunity to assimilate in society, make their contribution, and have a life of dignity. In another landmark case, the Supreme Court held that where the CRPF had initiated a disciplinary proceeding against a person with a medical history of obsessive-compulsive disorder and depression and has been undergoing treatment for the same since 2009, the initiation of disciplinary proceedings against persons with mental disabilities is a facet of indirect discrimination as such persons suffer a disproportionate disadvantage due to the impairment and are more likely to be subjected to disciplinary proceedings.  

The key takeaways of the judgment are as follows:

  • 2. The mental disability of a person need not be the sole cause of the misconduct that led to the initiation of the disciplinary proceeding. Disability needs to be one of the factors that led to the discriminatory Act.
  • 3. Thus, the employee is only required to prove that disability was one of the factors that led to the institution of disciplinary proceedings against him on the charge of misconduct. A related enquiry then examines whether the conduct of the employee with a mental disability must be solely a consequence of their disability or whether it is sufficient to show that the disability was one of the factors for the conduct. An interpretation that the behaviour should solely result from an employee’s mental disability would place many persons with mental disabilities outside the scope of human rights protection.
  • 4. Regarding the complex nature of mental health disorders, any residual control that persons with mental disabilities have over their conduct merely diminishes the extent to which the disability contributed to the behaviour. It does not eliminate it as a factor.
  • 5. Mental health disorders pose a unique challenge in disability rights adjudication. Very often, persons are unaware of or in denial of their mental disability. Even if they are aware of avoiding stigma and discrimination, they tend not to disclose their mental illness before an incident of purported misconduct. 
  • 6. Many people with mental health disorders are willing and able to work. However, socio-structural barriers impede their participation in the workforce. People diagnosed with mental health disorders are less likely to be employed or are relegated to low-paying jobs that are not commensurate with their qualifications and interests. Exclusion from the workforce creates material deprivation, impacts self-confidence, and results in isolation and marginalization, exacerbating mental distress. People with mental health issues hide their illnesses from co-workers and managers to escape stigma and discrimination. Thus, they may fall foul of the requirement to request reasonable accommodation. Hence, the duty of reasonable accommodation to persons with disabilities is sacrosanct.
  • 7. All possible alternatives must be considered before ordering dismissal from service. Thus, what is required is a nuanced and individualized approach to mental disabilities-related discrimination claims, which requires understanding the nature of the disadvantage that such persons suffer.
  • 8. Saying that persons with mental health disorders are never in control of their actions may perpetuate another stereotype that such persons are “dangerous” and are more prone to commit violent or reckless acts.
  • 9. Since disability is a social construct dependent on the interplay between mental impairment with barriers such as social, economic and historical, among other factors, the – one size fits

approach can never be used to identify the disability of a person. Disability is not universal but an individualistic conception based on a person’s impairment and the barriers they face. Since all person’s obstacles are personal to their surroundings – interpersonal and structural- general observations on ‘how a person ought to have behaved’ cannot be made.

The above judgments reflect that the judiciary is opening new paths for all of us to adopt and move towards a more inter-sectoral approach to mental health, taking into account the role and influence of structural determinants and barriers; however, the responsibility of implementing and monitoring the MHA to protect and promote the rights of persons with mental illness do not lie only with the judiciary but with the other stakeholders as well. 

The rise in harassment and discrimination of employees at the workplace has negatively affected the employees’ performance, health, and confidence. In a case regarding the suicide of an engineer, whereby the deceased left a suicide note whereby he stated harassment by his superiors and colleagues were the reason for committing suicide. The court had observed that under administrative control and discipline, a superior officer may be accessible to take any executive disciplinary action, as per rules, but cannot humiliate a subordinate employee in a threatening manner. In other cases, having similar facts, the respective high courts quashed the proceeding against the accused of abetting the suicide of the senior employee. The different approaches of the three high courts in the exact facts of cases, prima facie, conclude that there is an absence of developed or settled judicial precedent that can help the judiciary to adopt a universal approach before deciding whether suicide committed due to the humiliation at the workplace amounts to abetment within the accepted definition of abetment under the IPC or not. 

To conclude, the government should play a pivotal role in ensuring that laws and legislations are in place to address mental health issues. The government should allocate a maximum budget for combating mental illness. The government should not only uncover this critical illness but also ensure that every entity has appropriate safeguards to protect the rights of its employees, including vulnerable populations. Proper monitoring of all the sectors should be followed to determine how they perform concerning workplace stress. Legal mechanisms should be placed efficiently to enforce, regulate laws and penalize organizations or individuals who flout these laws. The legal system should provide avenues that can be assessed by both employers and employees alike.

It is also incumbent on every employee to address any discrimination they face in the workplace with proper legal assistance. If in case an employee is going through depression or any other medical condition, in that case, it is incumbent on the employee to inform the company about their mental illness. It should submit requisite proof from qualified medical professionals to get the benefit and protection of the applicable laws. It might be challenging to join the workforce when the employee has mental health symptoms that are not “serious” as per the conventional understanding of mental illnesses. These obstacles might be more layered if the employee is a woman or belong to the LGBTQIA+ community, both of which face intersectional discrimination in the workplace. Demanding accommodations and appropriate behaviour from your employer are your rights. Your mental health illness should never be a ground for discrimination in any sphere of life. To foster a healthy working space, any professional environment must reflect respect, understanding, and empathy, which is as much a responsibility of the employee as the employer in any professional setup. 

The World Health Organization (WHO) 2022 guidelines on Mental Health at Work is about strengthening capacities, building awareness and providing opportunities for recognizing and acting early on mental health conditions at work. WHO recommends three evidence-based interventions: manager training for mental health, training for workers in mental health literacy and awareness, and individual interventions delivered directly to workers to protect and promote mental health at work.

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