The Law and You: Mental Health and Employee Rights

By Vandita Morarka

Let’s take a look at understanding what employment and employee rights exist in India, with reference to those with mental illnesses. The Mental Healthcare Act, 2017 looks at healthcare and support provisions for those who have mental illnesses, you can read a piece explaining this law in detail here.

The Rights of Persons with Disabilities Act, 2016 (hereinafter PwD Act) is another key law at play here. It looks at the rights of those with any kind of disability, physical or mental, it defines “person with disability” as meaning a person with long-term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders her/his full and effective participation in society equally with others.

Also Read: The Law and You: Mental Health in India

Both Acts define ‘mental behaviour’ as ‘mental illness’ — that means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, but does not include retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence.

The interpretation of such a definition could technically include aspects of depression, anxiety, high levels of stress and so on as well.

Unfortunately in practice, due to the varying nature and spectrum of such illnesses, all employment policies do not account for such rights for those with mental health illnesses that are not deemed ‘substantial’ enough. These Acts don’t provide clear guidelines for rights of those afflicted with any kind of mental health illness in relation to their workplace. The PwD also doesn’t understand that the workplace support needs of those with mental health illnesses would differ from those with physical health issues and hence policies would need changing to account for both separately. At the same time, we can build on certain rights that can be inferred from these laws. It is mainly the PwD Act that creates a basis for employee rights in cases of mental illnesses that can be termed as a disability:

• The PwD Act is meant as an Act to give effect to the United Nations Convention on the Rights of Persons with Disabilities. The Convention clearly identifies non-discrimination and equality of opportunity as a key principle for empowerment of persons with disabilities of any kind.
• The PwD Act further defines “discrimination” in relation to disability to mean any distinction, exclusion, restriction on the basis of disability which is the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field and includes all forms of discrimination and denial of reasonable accommodation.
  This effectively ensures that in all matters of employment or workplace policies, persons with mental health illnesses cannot be discriminated against. Their treatment has to be at par to what would legally be required of someone towards a person with physical disabilities.
• The PwD Act states that the Government shall take measures to protect persons with disabilities from being subjected to torture, cruel, inhuman or degrading treatment.
  he interpretation of such treatment can also be workplace policy or practice that doesn’t allow for unfair treatment of anyone with a mental illness or any behaviour, at a workplace, that demeans a person with mental illness.
• The PwD Act clearly states that a government workplace can’t discriminate against any person with disability in any matter relating to employment; the government though can notify of any specific employment roles that are not subject to this provision. This essentially implies that if you have a mental illness and have the qualifications to do a job, unless clearly specified why you can’t do the job by way of a notification, the government cannot discriminate against you while making a hiring choice.
• All employers, government and private, are supposed to clearly state their equal opportunity policy. The policy details measures they would be taking to comply with provisions under the law, to ensure the rights of those with disabilities are upheld. It means that all employers need to ensure that they have a policy in place that gives equal opportunity to someone with any disability, be it physical or mental. It would also mean that in keeping with such policies they build support structures and programs to give actual effect to the policy.

Offences committed by persons or companies are punishable under the PwD Act. In the case of a company, all person(s) in charge of the conduct of the business of the company will be responsible.

The main problem that arises here in India, like several other countries, UK for example, is that such law seems to account for mental health related issues and rights only when the issue can be classified as a disability that is substantial and long term.

What the law and company policies need to account for, is the need to recognise mental health as a spectrum, the same way physical health is viewed. The law in itself seems to discriminate against mental health by not understanding it the way physical health/ illness is understood.

It is important to practise equality and non-discrimination in terms of all aspects of mental health and not just those that would be defined as a disability by the law. The same way company policy would account for sick leave for an employee when they have viral fever, it needs to account for sick leave for stress. It is imperative for companies to break down the complete extreme of acknowledging mental illness only as ‘substantial’ disorders and also look at it at par to physical illnesses, where physical health is not looked at as two extremes but as a continuing spectrum.

 

 

This would mean that you can as easily take a day off because you feel mentally unwell and in the need of mental health care as you would if you felt physically unwell, without it having to be an illness that is necessarily of a higher intensity and prolonged.

There is also an urgent need to bring the need for systemic awareness creation relating to mental health into a policy format for employers to follow, to reduce the stigma and social ostracisation that those with mental health issues are affected with. As has been done with the law relating to sexual harassment at workplaces, the government can easily mandate compulsory awareness creation and support systems for redressal in terms of mental health illnesses.

There is an urgent need for companies to evolve a workplace mental health policy and supportive practices. The WHO provides a module that can be used a starting point for those employers wanting to build in such practices to make their workplaces more inclusive and humane.

Note: Both laws referred here are fairly recent and hence do not have adequate supportive case law. None of this content is meant to act as legal advice under any circumstances.

 

About the Author

Vandita Morarka is an independent policy consultant, legal researcher and gender rights facilitator. She is currently the Policy, Legal and UN Liaison Officer at Safecity (Red Dot Foundation). She is working on a series for The Health Collective looking at The Law and You: an attempt to understand the law that governs mental health in India and its resultant rights and duties.

Views expressed are personal. Material on The Health Collective cannot substitute for professional mental health advice from a trained professional. For more on help available, do click here.