Mental Illness Disclosure in the Workplace: An Opportunity for Improvement

December 2021 Vol 14, No 4 - Clinical, Review Article
Gary Branning, MBA; Heidi C. Waters, PhD; Christy R. Houle, PhD, MPH; Stacey L. Worthy, Esq; Betsy Fink, MBA, PMP; Katie Hayes
Mr Branning is President, Managed Market Resources, Mt Olive, NJ; Dr Waters is Senior Director, Policy Research, Otsuka Pharmaceutical Development & Commercialization, Princeton, NJ; Dr Houle is Director, Value and Real World Evidence, Lundbeck, Deerfield, IL; Ms Worthy is Principal Attorney, Sequel Health Law, Washington, DC, and Counsel, Aimed Alliance, Washington, DC; Ms Fink is Vice President, Operations, and Ms Hayes is Senior Manager, Market and Customer Insights, Managed Market Resources.
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Abstract

BACKGROUND: The Americans with Disabilities Act (ADA) prohibits discrimination based on physical or mental disabilities and requires that employers provide reasonable accommodations to workers with disabilities who can perform their essential job functions. However, the ADA also states that an employer is not required to hire or keep an individual with a psychiatric disability if it poses a direct threat to his or her safety or the safety of others.

OBJECTIVE: To identify employers’ disclosure requirements for mental illness diagnosis or treatment during the job application process and/or as a condition of ongoing employment, to determine disclosure requirements of state and federal licensing bodies, and to evaluate the legality of disclosure of mental health status.

METHODS: We conducted an Internet-based search to identify public and private employers’ disclosure requirements based on 4 keyword combinations, including “employment/mental health,” “employment/mental illness,” “license application/mental illness,” and “license application/mental health.” Other employers were included based on known federal and/or state certification requirements or a governing body policy for employee suitability and fitness. A panel of 3 investigators reviewed the data and analyzed the key findings, industry trends, and workplace implications.

RESULTS: Of the 23 industries (eg, construction, government, military, transportation) investigated, 5 were public and 18 were private. Public employees and government-regulated companies often required disclosure of mental health conditions because of the nature of the work. Private companies showed more variability than public in whether applications contained disclosure requirements, some of which were not compliant with the ADA regulations.

CONCLUSIONS: Across the United States, job applicants and workers are often asked to disclose mental health status as a condition of employment. Consequently, applicants and workers may hide mental health issues, resulting in the underuse of mental health resources by those in need.

KEY WORDS: ADA compliance, Americans with Disabilities Act, disability, discrimination, employees, employers, mental health disclosure, mental illness, workplace

Am Health Drug Benefits.
2021;14(4):147-153

Manuscript received March 4, 2021
Accepted in final form August 5, 2021

Disclosures are at end of text

Mental illness refers to a wide range of mental, behavioral, and emotional disorders that alter thinking, behavior, or mood.1 In 2019, 51.5 million adults in the United States had a mental illness2; however, only 44.8% of them received treatment.2 People with mental illness often have increased medical and psychologic comorbidities, lower rates of employment, and higher rates of homelessness and incarceration than those without mental illness.2

The Americans with Disabilities Act (ADA; 42 US Code §12101) protects workers with mental health issues by prohibiting private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities during the hiring process.3 For example, pursuant to Title I of the ADA, private employers, state and local governments, employment agencies, and labor unions cannot require medical examinations or make disability-related inquiries unless the examination or inquiry is job-related and consistent with business necessity.3 Even then, an employer can require a medical examination or inquiry only after making an offer of employment to a job applicant and before the applicant begins employment. Similarly, licensing boards may not discriminate against qualified individuals on the basis of disability.3

Title II of the ADA, which applies to state and local government entities, such as licensing boards, mandates that no qualified individual should be excluded or denied the services, programs, or activities of a state-run institution, or be subjected to discrimination.3 However, if an individual cannot meet the necessary criteria to perform in a particular field, then he or she may not be considered qualified according to the ADA.3

Therefore, licensing boards are permitted to ask questions about an individual’s mental health conditions, but inquiries must be limited in scope. The questions must address whether the individual is able to meet the essential eligibility requirements for participation in the specific profession, and such eligibility requirements must be necessary for the provision of the services, program, or activity being offered.3 The ADA also offers protection for persons with previous mental health conditions who are now recovered.4

The decision to disclose a mental health condition, either during the hiring process or during employment, has many implications. Research has shown that disclosure of a mental illness on a job application may lead to reduced chances of being selected for employment.5,6 For current employees, fears of stigma, loss of credibility among peers, being passed over for promotional opportunities, and of termination are all reasons that persons may choose not to disclose a mental health issue.5,7

However, in the workplace, poor mental health can negatively affect job performance, productivity, engagement, physical functioning, and communication.8 The disclosure of mental illness may have some positive benefits, including receiving necessary accommodations, availability of workplace programs to assist employees, and reduced stress from not hiding a condition from employers.5

The goals of this study were to assess hiring and workplace practices that require the disclosure of mental health issues and the use of medication for mental health conditions as a requirement of employment or licensure, and to determine what, if any, impact that may have on employment.

Methods

To identify public and private employers, we conducted an Internet-based search using 4 keyword combinations, including “employment/mental health,” “employment/mental illness,” “license application/mental illness,” and “license application/mental health.”

The study inclusion and exclusion criteria of professions were based on the availability of publicly accessible information, which was used to identify and categorize industries, and to identify mental health disclosure requests. In some cases, employment applications were only visible to registered users, which limited the research.

Public and private industries were reviewed to discern whether job applicants and workers were required to disclose their mental health status and related medication use. The industries were selected based on state certification requirements, or because a governing body dictated policy for employee suitability and fitness.

A panel of pharmaceutical management MBA student researchers reviewed journal articles, industry publications, state licensure requirements for applicants, and employment applications to evaluate the appropriateness and legality of applicants or workers having to disclose their mental health status and determine the requirements of state and federal licensing bodies with respect to disclosures.

A panel of 3 experts from the health or legal industries reviewed the accumulated data, and highlighted key findings, industry trends, and workplace implications. One expert was an employee advocate, with an emphasis on health and wellness; a second expert was a senior human resources executive for a large insurance corporation; and a third was from a nonprofit organization, with a focus on workplace policy and employee advocacy.

Results

A total of 23 industry and other population groups were identified, representing 5 public and 18 private entities (Table 1). The public industries included the Transportation Security Administration (TSA), US Department of Transportation (USDOT), Occupational Safety and Health Administration (OSHA), politicians, and park rangers. As part of the job application, public employees were often required to disclose mental health conditions and/or related medication use, because of the nature of their work.

Table 1

Professions that required state licensure, such as legal or medical employees, and private-sector industries, such as construction, energy, or transportation workers, varied widely in whether their job applications contained disclosure requirements, and the extent to which disclosures were compliant with the ADA.

Table 2 provides a summary of the professions that were consistent with the ADA guidelines in their job application requirements (ie, low variability), or those that varied widely in their compliance with the ADA and had variability among professions where states regulate licensing requirements (ie, high variability).

Table 2

Public employees. The requirements to disclose mental health conditions and medications for public employees (ie, law enforcement, firefighters, military personnel) were similar across the 50 states. The US Armed Forces had the strictest requirements. Recruits were required to take a medical examination, which allowed for the disqualification of applicants who presented with psychiatric or behavioral disorders, a history of disorders with psychotic features (eg, schizophrenia, delusional disorders, unspecified psychoses, mood disorders), a history of mental health disorders, or previous psychiatric hospitalization.9

State law enforcement applicants in Alabama were required to submit to a physical examination and a psychological evaluation, and other states, such as Alaska, often require applicants to disclose all prescription medications and previous hospitalizations.10,11 A physical examination was also required for firefighters in Arkansas, and evidence of a neurologic disorder was grounds for disqualification.12

These types of employment often have a high degree of stress related to carrying out job-related duties and interfacing with and protecting the citizens of the United States. Mental health conditions may negatively affect the employee’s ability to perform such high-stress positions, and therefore disclosure requirements may be in direct violation of the ADA, depending on the manner in which the disclosure requests are made.

Government agencies. In general, applicants for positions in the federal government are required to participate in mandatory pre-employment health screenings and to disclose voluntarily physical and mental health impairments. The extensive list of disorders that could disqualify an applicant reflects the underlying correlation between recognized medical conditions and effective job performance.13,14

Depending on the specific agency and position, a complete medical, neurologic, and/or neuropsychological examination is administered.13 For example, the TSA requires applicants to undergo a medical assessment and to provide related documentation.14 These applicants with disclosed mental health conditions are required to provide assurance of treatment compliance and that the psychiatric disorders have not led to functioning or judgment impairment, through provided documentation.14 Similarly, USDOT applicants are required to undergo a medical examination and, in general, are disqualified from employment if the examination reveals psychosis, bipolar disorder, severe personality disorders, or epilepsy.15

Federal government jobs, especially those with the TSA and USDOT, require a great deal of cognitive abilities, which may be impaired by a mental health disorder. In general, the government agencies tie the disclosure of a mental health condition to an applicant’s ability to perform essential job functions, and therefore would follow ADA guidelines.

Legal sector. Every US state bar requires that future lawyers have strong moral character and are fit to practice law4; however, the states go about this in different ways. More than 50% (ie, 26) of the states use the National Conference of Bar Examiners’ Character & Fitness application, which focuses on the applicant’s conduct and behavior, and his or her current ability to practice law.16 As part of the Character & Fitness application, applicants are asked if they currently have a condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) that in any way affects their ability to practice law in a competent, ethical, and professional manner.17 Applicants are also asked to disclose medication use for the treatment of any such conditions. Because the application focuses on a current or ongoing condition, in an attempt to assess whether the applicant can meet essential requirements for practicing law, such questions may be ADA-compliant.17

The other 24 states vary widely in the disclosure of mental health conditions and/or medication use. For example, some states do not inquire about an applicant’s mental health, whereas others (eg, Minnesota) inquire about current or past (past 2 years) diagnoses.18 If an applicant for bar admission in Minnesota answers yes to the mental health question, then he or she must describe whether the condition has impaired his or her ability to meet the eligibility requirements to practice law.18

Other states, such as Arkansas, require a broad authorization to contact a bar examination applicant’s treating physician(s), if the applicant indicated a current mental illness diagnosis.19 Although some states, such as Minnesota, tie the questioning back to the ability to meet eligibility requirements to practice law (and therefore remain compliant with ADA),18 other state bars leave the line of questioning open.

Medical professionals. Physician licensing has typically included questions about mental health conditions, and if affirmed, reports of treatment have been required.4 Although a 2017 study showed that most US states inquire about mental health conditions on a first-time medical licensing board application, there is significant variability in how the states assess mental health.20 According to that study, 23 states limited the inquiries to disorders causing functional impairment, and 6 states limited the questions to current conditions. Approximately 33% of the states examined in the study likely did not comply with the ADA, because they asked questions about past impairment in addition to current impairment from a mental health condition.20 Consequently, in a 2017 survey, 40% of physicians were reluctant to seek formal treatment for a mental health condition, because of possible licensure repercussions.20

We assessed the licensure requirements for other medical professionals (eg, dentists, nurses, pharmacists, pharmacy technicians, podiatrists, licensed clinical social workers, veterinarians, psychologists) through publicly available literature searches, such as PubMed, and in the top 5 states (California, Texas, New York, Florida, and Illinois) by population size in addition to New Jersey and Delaware, but trends were hard to ascertain in these states, given the limited public information available.

A recent review of registered nurse licensing boards in the United States showed that 21 boards do not ask questions about mental illness, and another 8 boards focus on current disability, which may be legal under the ADA, depending on the scope of the question.21 However, 22 boards ask questions that may not be ADA-compliant, because they focus on past illness, and/or require a prediction of future impairment.21

We also identified information regarding licensure for psychologists through a literature review. One study showed that 56.9% of states do not ask any questions about mental health, and 21.6% of states limit questions to current conditions or to job-related competence in compliance with the ADA.4 The remaining states inquire about greater time frames or indefinitely, which would likely violate the ADA.4 Across the medical professions, the requirements to disclose mental health conditions were similar, with many professions likely in direct violation of the ADA.

Private sector. In our review of private-sector industries, we evaluated employees in construction, energy, and transportation. Employees in the oil and gas industry, including offshore oil rig workers, were typically required to complete a comprehensive medical, social, and occupational history questionnaire. The disclosure of mental health conditions and conditions that may limit the ability to perform job duties was required for 1 company,22 but certain conditions disqualified applicants from employment in another company.23 However, the specific details varied by employers.24

By and large, employees in these private-sector industries work in potentially dangerous situations, so their ability to perform job duties would be an important consideration. Linking the mental health disclosure requirement to essential job duties can make compliance with the ADA more likely. However, such disclosures should be requested after the job offer is made rather than before offering employment.

Transportation-related industries, such as taxi drivers and rideshare companies, were also assessed. All persons applying for positions that require a commercial driver’s license (eg, truck driver, bus driver, crane or other heavy equipment operator, highway maintenance technician) must provide verification of their physical and mental health qualifications to drive safely a commercial vehicle.15 Specifically, the commercial driver’s license application asks if the candidate has had anxiety, depression, nervousness, and/or other mental health conditions; however, whether that disclosure disqualified a candidate was unclear.15

In reviewing the top 6 cities ranked by the number of taxi drivers on Wikipedia, there was significant variability within each city’s application requirements. For example, New York City requires a physical examination, and includes the disclosure of mental illness as part of the application process.25 By contrast, Washington, DC, did not require a medical examination or the disclosure of any physical or mental health condition (according to their 2016 records).26

With increasing popularity in ridesharing,27 it is reasonable to expect that drivers employed by reputable companies, such as Uber or Lyft, would be required to disclose medical or mental health issues. However, disclosures for drivers are not required in the United States, with the exception of the state of Colorado, which necessitates certification from a health professional.28

Although we made attempts to evaluate other professions, such as teachers, school counselors, daycare staff, and lifeguards, information regarding the requirements to disclose mental health conditions and medications was not publicly available.

Policy Implications

Our findings show that across the United States, and within various public and private-sector sectors, job applicants and employees are often asked to disclose their mental health status. Typically, the more heavily regulated the profession, the more common it is to require mental health disclosure. Examples include public employees and people working in jobs with high levels of physical and mental endurance requirements. These professions link mental health disclosure requirements to job requirements and, therefore, may not be in violation of the ADA, depending on how and when the questions were asked. Other industries, however, such as the legal and medical professions, are more variable in their requirements and in their compliance with the ADA.

Employers may continue to require the disclosure of mental illness for fear of unpredictable job performance, absenteeism, and workplace disruption.29 Many persons with mental health disorders may hide their condition during the hiring process and once on the job, because these conditions are often “invisible” and episodic.29 Consequently, job applicants and employees may conceal their mental health history, because of potential discrimination in the hiring process, fear of being terminated from a current position, or a lack of future opportunities.5 In addition, fear of discrimination and stigma from peers are common reasons for nondisclosure of mental illness in the workforce,5,7,30 and self-stigma and embarrassment may also play a role.31

Efforts have been made to protect workers from these mental health questions in several professions. In February 2019, the Conference of Chief Justices, an organization comprised of top judges from every state, released a resolution recommending the elimination of questions pertaining to mental health history, diagnosis, and treatment from applications to state bar associations.32 In particular, the New York State Bar met in October 2019 to consider removing questions about mental health from applications for state bar admission, and voted the next month to eliminate those questions completely.33 Lawsuits have also been brought in the medical profession to strike questions from licensing examinations.34 Courts have largely concluded that licensing boards could not discriminate against applicants with disabilities based on the status of the examination.34 Nevertheless, job applicants and employees in the medical profession may still choose to hide any mental health diagnoses.

From a policy perspective, there are several ways employers can improve best practices, whether in the public or the private sector, that would benefit the employer, job applicants, and employees. Employers should include all essential functions in the job post.

Under the ADA, employers may choose not to hire someone with a particular disability if the person cannot fulfill all the essential functions of the job. Therefore, rather than ask if a person has a mental health condition or is taking a mental health–related medication that would impair his or her ability to perform certain functions, employers should simply ask whether the person can perform that function (eg, whether the person can operate heavy machinery). Clearly articulating the essential functions within the job posting and applicant screening questions protects the employer and applicants with regard to discrimination.

Regardless of whether the disclosure of mental illness is ADA-compliant, there are opportunities for improvement in the treatment of persons with mental health issues during the hiring process and during ongoing employment. Although the workplace may be stressful at times, employment can lead to improved mental health, self-esteem, a sense of accomplishment, and improved quality of life.5 Unless directly related to the ability to perform one’s job duties, mental health disclosure should be left up to the employee when he or she is comfortable to do so.7

From a policy perspective, passing legislation and reforms that prevent employers from asking about a person’s mental health status and treatment history would ensure protection during the hiring process. If an employer includes screening questions that comply with the ADA, those questions should be prefaced with language clarifying that the employer is not permitted to discriminate based on, or to share, the information collected. Employers should also be more transparent about what and how they intend to use that health information, including how they will dispose of it. To bolster these efforts, employers should implement internal policies to ensure the confidentiality of job applicants’ and interviewees’ health information.

Furthermore, the employer should include information about the workplace’s supportive environment and any relevant benefits, such as employee assistance programs. Empathy and appropriate accommodations on the part of the employer should be required to help support employees.5 Many employers offer employee assistance programs that provide confidential support for persons with mental health issues.35 However, participation in employee assistance programs is typically less than 10%, in part because of employees not believing that they are truly confidential and a lack of promotion of the program on the part of the employer.35

Considering the underuse of employee assistance program benefits, employers should offer robust mental health benefits, including access to a sufficient number of in-network mental health specialists, telehealth for those living in rural areas or urban healthcare deserts, drugs to treat mental illness without overly restrictive utilization management or patient copays, coverage of prescription digital therapeutics, and the elimination of caps on the number of annual therapy visits.

Limitations

This study had several limitations, including the reliance on publicly available information, which constrained the findings especially in the private sectors, where information about hiring practices is generally not available and may vary greatly between companies. This limitation clearly illustrates the 2-edged dilemma of laws that are difficult to implement or that allow variability in their implementation, along with legal concerns of violating ADA or state laws or regulations regarding mental health.

Furthermore, this research was limited to select industries rather than a broad spectrum of employment. This limitation was largely a result of the availability of public information.

These limitations highlight the need for additional research, including an assessment of how often people are dissuaded from applying for a position based on disclosure requirements, how often people lie about their health condition, or do not seek treatment because of disclosure requirements, and how disclosure requirements perpetuate stigma.

Conclusion

Our findings reveal important implications for the hiring and retention of employees with mental health conditions. Significant variability exists in disclosure requirements for mental health conditions, and variability in whether the disclosures directly violate the ADA. Changing the way mental health is handled during the job application process and during ongoing employment may involve coordination between influential thought leaders across industries, to continue efforts for advocacy and education. Collaboration among those industry leaders may help to drive the necessary changes to mental health that are needed.

Funding Source
This study was funded by Otsuka Pharmaceutical Development & Commercialization, Inc, and Lundbeck, LLC.

Author Disclosure Statement
Mr Branning, Ms Fink, and Ms Hayes have received consulting and research support from Otsuka Pharmaceutical Development & Commercialization and from Lundbeck; Dr Waters is an employee of Otsuka Pharmaceutical Development & Commercialization; Dr Houle and Ms Worthy have no conflicts of interest to report.

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