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Do Anxiety and Depression Qualify as Disabilities Under the Law?

Ms. DeGerolamo began working for her employer as a Marketing Coordinator in November 2007. Ms. DeGerolamo took a leave of absence in August 2012 for anxiety and insomnia under the Family Medical Leave Act ("FMLA"), alleging that she suffered from "great anxiety and depression" which was especially aggravated by crowded roadways experienced during the heavy traffic of rush hour.

On November 19, 2012, Ms. DeGerolamo returned to work with the limitation of working only four (4) hours per day until December 17, 2012. Ms. DeGerolamo's employer initially accommodated her concerns about rush hour by allowing her to come in after the morning rush hour and to leave before the evening rush hour. However, Ms. DeGerolamo was shortly thereafter given a poor performance review, and delegated to clerical type work. Ms. DeGerolamo objected to the reduction in her work with the firm's ethics review board in May 2013, but never heard back. Almost immediately after complaining, Ms. DeGerolamo was terminated on May 17, 2013.

Ms. DeGerolamo filed a lawsuit against her employer under the New Jersey Law against Discrimination ("NJLAD") and the FMLA for refusing to provide a reasonable accommodation, refusing to enter into an interactive dialogue about her disability, and for terminating her in retaliation for her complaint about discriminatory treatment. Ms. DeGerolamo stated that her medical condition qualified her as being disabled, required she receive ongoing medical treatment, and also limited her physical abilities. This particular case ultimately settled out of court but raises interesting questions about how mental illness is treated under the FMLA and disability laws.

While New Jersey law may vary, in Colorado disability claims come under the Colorado Anti-Discrimination Act ("CADA"). The CADA was amended in 1990 to include, "a person who has a mental impairment, but such term does not include any person currently involved in the illegal use of or addiction to a controlled substance," under the definition of "disabled," in regards to housing practices. In 1992, the CADA was amended to include, "any person who has a mental impairment," within the definition of disability for employment, public accommodations and discriminatory advertising. "Mental impairment" means any mental or psychological disorder such as developmental disability, organic brain syndrome, mental illness, or specific learning disabilities. Under this law, it is illegal for a Colorado employer to refuse to hire, to discharge, to promote or demote, to harass during the course of employment, or to discriminate in matters of compensation, terms, conditions, or privileges of employment against any person otherwise qualified because of disability.

Similarly, the FMLA definition of a "serious health condition" includes a mental condition that involves inpatient care or continuing treatment by a health care provider. The FMLA allows for up to twelve (12) workweeks of unpaid, job-protected leave a year for their own "serious health conditions" or to care for a parent, spouse, or child who has a serious health condition. To qualify under the law, like a physical condition, mental health conditions, require hospitalization or ongoing treatment such as, a period of incapacity of more than three (3) consecutive calendar days involving: 1) treatment two (2) or more times by a health care provider, or under the orders of a health care provider, or, 2) treatment by a health care provider on at least one (1) occasion that results in a supervised regimen of continuing treatment. Health care providers can include clinical psychologists and clinical social workers, as well as physician.

If you have a question about the FMLA or CADA as it applies to mental conditions or physical conditions, contact us at to discuss your legal rights.

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