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Second Shift

Can You Get Fired For Having Postpartum Depression?

Postpartum depression can hit as many as one out of five new mothers up to a year after giving birth. Yet some still get fired.

Can You Get Fired For Having Postpartum Depression?
[Photo: Flickr user Justin Fincher]

Depression. Anxiety. Bipolar disorder. OCD. These mental illnesses are not often thought of in the same context as a new baby. The latter is more likely to be linked with smiles and celebration. But recent research shows that these disorders or a combination of some can develop in as many as one in five women in the year after giving birth.

While mothers are at higher risk due to the biological changes of childbirth, fathers are not immune. A report that assessed 43 studies of a total of more than 28,000 fathers found that an average of 10.4% suffered from depression sometime between the first trimester of their partner's pregnancy and the child's first birthday—higher than the annual rate for depression in adult men.

Businesses are making progress recognizing the needs of workers with new babies. The recent raft of tech companies offering extended paid parental leave, a new platform designed to help ease the transition of employees to and from leave, and policies aimed at having kids onsite to help parents balance the demands of work and family are all helping the shift toward better work-life integration.

But the majority of workers still aren’t eligible for paid leave benefits through their companies, and those who do suffer from postpartum depression aren’t always able to take the time they need to recover. When you consider that women make up over 57% of the workforce, and Pew Research indicates that 40% of working mothers are breadwinners, Tom Spiggle, the author of You’re Pregnant? You’re Fired and founder of the Spiggle Law Firm, believes that postpartum depression and related mental illnesses will have an even larger economic impact on families.

Photo: Flickr user David D

A Double Bind For Employees And Employers

Spiggle says that despite the new pregnancy discrimination federal guidelines issued in 2014 that highlight protection for pregnant employees under the Pregnancy Discrimination Act of 1978 (PDA) and the Americans with Disabilities Act (ADA), not everyone who is protected by the law knows their rights. And they also may not know of the latest screening recommendation issued by the United States Preventive Services Task Force that Katy Kozhimannil, an associate professor of public health at the University of Minnesota, called "an enormous public health need" in a report in the New York Times.

Spiggle says women who are affected by postpartum depression and ask for more time off are in a double bind. "The temptation here is clearly high for a manager, looking at the short term, wanting to fire an employee seen as a liability," he states. "Imagine further that at work is a boss who would like nothing better than to replace what he sees has a liability [the pregnant or postpartum parent] with a 25-year-old man," he says.

What The Law Covers

Fortunately, a woman or man in this situation may have some protection through the ADA, though sadly few people know about it, Spiggle says, because many think of disabilities in terms of physical challenges such as using a wheelchair. "The law actually covers anyone with a condition that affects a major life activity," he says, including temporary disabilities such as depression and anxiety.

Spiggle points to a case where the Equal Employment Opportunity Commission (EEOC) sued an employer that fired an employee suffering from postpartum depression. The case settled before trial, he says, in part because an employer can’t fire a worker just because they have a mental illness. "Employers are often required to provide employees covered by the ADA with workplace changes that allow them to continue to work," he explains, including providing a quieter work space, more frequent breaks, or even time off from work. However, this only applies to companies with 15 or more people on staff.

Photo: Flickr user Ed Ivanushkin

What The Law Doesn't Cover

A smaller organization isn’t bound by that law, cautions Spiggle, and could dismiss an employee affected by postpartum depression without consequence. In those cases, there may be state protection that in some locations may provide more protection than the ADA.

A pregnant woman working at a company with more than 15 employees is covered by the Pregnancy Discrimination Act, but their employer may not required to make any allowances to address any pregnancy-related issues. If she’s got gestational diabetes, or has to be on bed rest, for example, she would be covered by the ADA. "It also would include a woman (or man) suffering from postpartum depression or a related mental condition, in many cases even if the condition is temporary or controlled by medication," he notes.

What You Can Do

Spiggle advises anyone suffering from postpartum depression to recognize that they are depressed, even in the wake of such a life-changing event. "Having a new baby is thrilling, but difficult for anyone," he says.

Getting to a doctor is the next step, and key to determine if you are protected under the ADA. "When you see your doctor, resist the urge to make it look like everything is okay," Spiggle cautions. "If you are depressed, tell him or her." It also may help to get that diagnosis in writing, especially if you think you may be fired due to the effects of postpartum depression.

Likewise, he recommends telling your employer you have a disability in writing, even if you aren’t asking for any changes to your work plan. "Your employer is not bound by the ADA if it does not even know that you suffer from a disability," he points out, and you may not be protected if they try to fire you.

That could happen, even if you aren’t actually suffering from postpartum depression. "Even if you are not depressed, but you get fired or demoted because your employer thinks you are, you may be protected under the Act," he says.

"Know that in most instances, your employer is required to make a good faith effort to accommodate your disability," says Spiggle, but it doesn’t mean they will. He recommends working with an attorney to have someone on your side who understands the complexities of the laws. "You can bet that your employer will call their lawyer if things get complicated," he adds.

Above all, says Spiggle, "Do your best not to let shame keep you from protecting yourself. Mental illness, like postpartum depression, is real and can have dire effects on your work performance and personal life. Apply any laws you can to protect yourself."

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