Are mental health conditions
considered a disability?

Yes, mental health conditions can be considered disabilities, depending on how they cause impairment to your life, and limit your ability to participate and function in the long-term. Disabilities are not limited to physical health conditions. If your symptoms impair your ability to function at work, and you would be otherwise able to perform your roles and responsibilities given the appropriate accommodations, you may be able to request reasonable accommodations from your employer.

“Section 2 of the Equal Opportunity Act 2000 defines disability as a:
(a) total or partial loss of a bodily function;
(b) total or partial loss of a part of the body;
(c) malfunction of a part of the body, including a mental or psychological
disease or disorder; or
(d) malformation or disfigurement of part of the body.”

What mental health issues can be considered a disability?

There is no exhaustive list of conditions that are classified as a disability. An impairment is categorized as a disability based on the severity and length of time that basic life activities are affected. Impairments must be long-term, or have the
potential to become long-term, in order to be defined as a disability.

What are reasonable accommodations?

According to the Equal Opportunity Commission’s Guidelines for Employers on Disability, "Employers should reasonably accommodate the needs of [persons with disabilities]."

Reasonable accommodations are meant to "reduce the impact of the disability/impairment on the person’s capacity to perform the essential functions of the job." Accommodations are essentially meant to make it easier on the person with the disability to perform their job.

That can include adapting elements of the job, such as the job content or machinery used at the job and adapting the work environment to make it more accessible to employees with disabilities. Whether or not you can receive accommodations for a disability depends on the accommodations being within reason. The adjustments cannot, however, impose "a disproportionate or undue burden" to the employer and they "should make it possible for a suitably qualified person with a disability to perform as everyone else."

The reasonable accommodations needed from person to person may vary, as each person's disability may vary in terms of its impairment. It would also depend on the job itself and its specific requirements, and the work environment. Reasonable accommodations, therefore, depend on what is suitable to both the employer and employee in this situation.

Reasonable accommodations may "be temporary or permanent depending on the nature and extent of the disability."

An example of accommodations for persons with mental health conditions may be working remotely, part of the time once you are able to perform all the duties of your job and it does not affect your performance negatively. This may be beneficial for people with Attention Deficit Hyperactivity Disorder (‘ADHD’) who may struggle to sit at a cubicle for eight hours, or people with Post-Traumatic Stress Disorder (‘PTSD’) or Generalised Anxiety Disorder ('GAD'), for whom loud environments can be filled with triggers and be very distressing on their nervous system.

How can you request
accommodations?

There is no specific process for requesting accommodations from your employer. If you need an accommodation from your employer, you should disclose your disability in order to access the specific accommodation. The EOC recommends making the request in writing for recording purposes.

It can also be helpful to get from a qualified professional, such as your therapist or doctor, a recommendation on the type of accommodations required and how the accommodations can assist the employee in their day to day functions.

What can you do if your request is rejected?

If your request for accommodation is denied, you can choose to lodge a complaint with the EOC. Once the complaint meets the preliminary requirements, the EOC can initiate an investigation into the allegations. If provided with evidence that the employer cannot within reason provide the accommodation for the employee, based on financial resources they may take no further action. If the denial of the request is not rational, the Commission can refer the matter to the in-house conciliator/mediator, to determine if the parties can come to an amicable resolution. If no resolution is reached via mediation, the matter can be referred to the Equal Opportunity Tribunal (‘EOT’) with the consent of the Complainant (the person lodging the complaint).

There are no specific guidelines for what constitutes a reasonable accommodation for which you can lodge a complaint. The accommodation has to be considered within reason, must not negatively affect your ability to perform your duties, and does not place an undue burden on the employer. The employee ought to have first disclosed their disability to the employer and requested the accommodation before lodging a complaint.

To lodge a complaint with the EOC, click here.

To read the guidelines for employers on disabilities, click here.

To visit the general website for the Equal Opportunity Commission, click here.

Discrimination towards applicants with disabilities.

The Equal Opportunity Act prohibits discrimination towards persons with disabilities in the following:
"An employer or a prospective employer shall not discriminate against a person—
(a) in the arrangements he makes for the purpose of determining who should be offered employment;
(b) in the terms or conditions on which employment is offered; or
(c) by refusing or deliberately omitting to offer employment."

Note that, while it is not deemed illegal, it is considered improper for an employer to ask a prospective candidate to disclose their disability before making a job offer. The employer can, however, ask questions about a candidate's ability to perform the prescribed duties. For example, they can ask if the candidate is able to lift up to a certain weight load, if this is a basic requirement of the job.

Discrimination towards employees with disabilities.

The Act prohibits discrimination towards employees with disabilities in the following ways:

"An employer shall not discriminate against a person employed by him—
(a) in the terms or conditions of employment that the employer affords the person;
(b) in the way the employer affords the person access to opportunities for promotion, transfer or training or to any other benefit, facility or service associated with employment, or
(c) by refusing or deliberately omitting to afford the person access to them; or
(d) by dismissing the person or subjecting the person to any other detriment."

Thank you to the Equal Opportunity Commission for their assistance and guidance in creating this resource.

Our notes

A truly fair and healthy society understands that mental health is just as important as physical health. The stigma and discrimination associated with mental health and the lack of understanding of it, make these individuals more susceptible to not being taken seriously or being treated less favourably. Taking the mental health of your employees seriously has also shown to be beneficial to companies, as a healthy, happy and productive staff leads to more profitability.

If a person has a mental health condition, this does not necessarily mean that they are not capable of performing their duties as well as anyone else. Having access to reasonable accommodations they may require, helps a person to perform better, which benefits everyone. Everyone deserves to work in an environment that ensures and prioritizes their wellbeing. It is worth noting that mental health conditions can look different from person to person. Two people with the same condition, may need very different accommodations.

This page was last updated on 19/07/21.