EEOC Offers Guidance on Workplace Rights of Those With Mental Health Conditions
A version of this article was originally published in the March 2017 issue of The HR Specialist. It is reprinted here with permission.
On December 12, 2016, the Equal Employment Opportunity Commission (EEOC) issued two resource documents. The first — Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights (employee guidance) — explains the rights of employees with mental health conditions under the Americans with Disabilities Act (ADA). The second — The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work (mental health provider guidance) — explains the law of reasonable accommodation under the ADA to employees’ mental health providers. Motivating the publication of these documents was the increasing number of EEOC charges of discrimination based on mental health conditions. The EEOC’s press release announcing the resource documents estimates that, in fiscal year 2016, the EEOC “resolved almost 5,000 charges of discrimination based on mental health conditions, obtaining approximately $20 million for individuals with mental health conditions who were unlawfully denied employment and reasonable accommodations.”
The employee guidance advises employees with mental health conditions of their rights under the ADA to be protected from discrimination and harassment at work and to receive reasonable accommodations that can help them perform and keep their jobs. Although mental health conditions are protected under the ADA only if they constitute disabilities (which requires that they substantially limit a major life activity), the EEOC emphasizes that a mental health condition does not need to be permanent or severe to be substantially limiting. If the condition makes activities more difficult, uncomfortable or time consuming for the employee as compared to other individuals, it may well be a disability. According to the EEOC, major depression, posttraumatic stress disorder, bipolar disorder, schizophrenia and obsessive compulsive disorder should “easily” qualify as disabilities.
The employee guidance provides that an employee is entitled to keep his or her medical condition private and that an employer is permitted to ask medical questions in only four situations: (1) when an employee requests a reasonable accommodation; (2) after the employer has made a job offer but before employment begins, provided that all employees entering the same job category are asked the same questions; (3) when the employer is engaging in affirmative action for individuals with disabilities (in which case the employee does not have to respond); and (4) on the job, if there is objective evidence that the employee may be unable to perform his/her job or poses a safety risk because of his/her condition.
The employee guidance advises employees who need a reasonable accommodation to ask for one and states that an employer may ask an employee to put his or her request for accommodation in writing. The employer is also allowed to ask for documentation from the employee’s mental health provider about the employee’s mental health condition and need for an accommodation. The employee guidance suggests that, if an employee does not want to disclose his or her specific diagnosis to the employer, “it may be enough to provide documentation that describes [the] condition more generally.” The employee guidance does not discuss the circumstances under which a general description would or would not be sufficient.
The mental health provider guidance confirms that employers may ask employees’ mental health providers for certain information about an employee’s mental health condition in the context of evaluating a request for reasonable accommodation. In particular, the employer is entitled to obtain information about the nature of the employee’s condition, the extent to which that condition limits a major life activity, how the employee’s symptoms make performing a particular job function more difficult, why the employee needs a particular accommodation, and whether the mental health provider would suggest a particular accommodation.
Both the employer guidance and the mental health provider guidance list examples of reasonable accommodations that might be appropriate for mental health conditions, including altered break and work schedules (so that employees can attend therapy appointments, for example), time off for treatment, quiet office space or devices that create a quiet work environment, changes in supervisory methods (such as written instructions from a supervisor), specific shift assignments, eliminating a nonessential job function, and working from home.
In commentary helpful to employers, the EEOC makes it clear that an employer does not have to excuse a failure to meet production standards or rules of conduct that are applied consistently and are necessary for the operation of the business, even if the employee’s difficulty was caused by a mental health condition or the side effects of medication. In the not-uncommon scenario in which an employee displays poor conduct or performance and offers the post-hoc explanation that the poor conduct or performance was caused by a mental health disability, the employer can address the poor conduct or performance in the same manner it would with a nondisabled employee. Accordingly, the EEOC recommends that employees ask for a reasonable accommodation before any performance problems occur or become worse.
The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.