The Employer's Legal Resource: EEOC issues New Guidance regarding Mental Health Conditions and Employee's Rights

02.01.17

The Equal Employment Opportunity Commission (EEOC) in December 2016 provided clarification and guidance on the protections afforded to employees with mental health conditions under the Americans with Disabilities Act (ADA) when it published Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights, a resource document providing a Q&A–style memorandum on the protections afforded to employees with mental health conditions.

Under the ADA, mental health conditions must be "substantially limiting," but are not required to be permanent or severe – this includes conditions such as post-traumatic stress disorder (PTSD), anxiety-related disorders, and depressive conditions (including major depression). The EEOC emphasizes that under the ADA employees are protected from discrimination, harassment, and unauthorized disclosure of private information.

Discrimination prohibited. Employers may not discriminate against an employee for having a disclosed mental health condition, but are under no obligation to employ persons who cannot perform the job functions or who pose a "significant risk of substantial harm" to themselves or to others in performing the job. However, in making this determination, the EEOC reminds that employers cannot determine that an applicant or employee poses a "significant risk of substantial harm" by using stereotypes or bias. The employer must also provide objective proof that the employee poses a significant risk of substantial harm that cannot be counterbalanced through reasonable accommodation.

Disclosure of Private Health Conditions. The EEOC lists only four (4) instances in which an employer may require an employee to disclose private health conditions:

  1. The employer may inquire as to an applicant's medical status after a job offer is made, but before employment begins, as long as the employer asks the same questions of all other applicants for the same position.
  2. Disclosure of employees' medical information may be requested when the employer is internally reviewing its hiring and recruiting practices for compliance with ADA affirmative action policies. However, employees are not required to provide the information requested.
  3. The employer may ask about a specific employee's medical or mental health condition when the employer has specific objective evidence indicating that the employee may not be able to perform his or her job, or that the employee poses a significant risk of substantial harm in performing the job. (Employers should proceed with caution and may want to seek legal counsel before proceeding here.)
  4. The employer is permitted to inquire on the physical and mental health conditions for which an employee is seeking a reasonable accommodation, in order to determine whether the accommodation can be made. (Again, proceed with caution as employers are not given unlimited access to medical information.)

Reasonable Accommodations Required. Employers who are notified of an employee's medical condition must take steps to provide reasonable accommodations to the employee. With respect to mental health conditions, the EEOC states that reasonable accommodations may include "altered break and work schedules," accommodating schedules for rest or therapy, specific shift scheduling, providing a "quiet work environment" and non-confrontational "supervisory methods." A reasonable accommodation may also include transferring the employee to another position or location, if available.

The EEOC reminds employees in its publication that reasonable accommodations must be requested in order to trigger the employer's responsibility to provide accommodations and that employers are permitted to request other documentation (usually from health providers) of the mental health condition before providing the accommodation.

Unpaid Leave Allowed. If an employee is still unable to work despite the accommodations provided, the employee may qualify for leave under the Family and Medical Leave Act (FMLA) or under other employer-provided leave policies.

In the press release issued on the publication, the EEOC noted the sharp increase of mental health-related charges of discrimination filed in 2016, stating that the EEOC obtained "approximately $20 million for individuals with mental health conditions who were unlawfully denied employment and reasonable accommodations." Employers are encouraged to review the resource documents provided by the EEOC to learn more about mental health conditions protected under the ADA and to remain in compliance with federal laws and regulations.

By Sara E. Potts, SPotts@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment
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