In March 2017, the Equal Employment Opportunity Commission (“EEOC”) issued a Guidance concerning the legal rights of workers diagnosed with mental health conditions. The Guidance came in the form of a question and answer sheet aimed at informing employers and workers of their rights under the Americans with Disabilities Act (“ADA”). The Guidance provides significant lessons for employers faced with the task of complying with the law and meeting the needs of employees with mental health conditions.
The ADA does not include an express definition of the term “mental health condition.” However, the EEOC did provide that major depression, post-traumatic stress disorder (“PTSD”), bipolar disorder, schizophrenia, and obsessive-compulsive disorder (“OCD”) should easily qualify as “disabilities” covered under the ADA. This is significant because if an employee has an ADA-covered medical condition, then the employer may be legally required to provide some reasonable accommodation to assist the employee in carrying out his or her job duties.
These reasonable accommodations can include altered work and break schedules, special shift assignments, changes in supervisory methods, or an option to work from home. If an employee desires a reasonable accommodation, he or she must simply ask for one. The law does not require that the request be made in writing or that it be made to any specific member of management. Still, to limit possible exposure, employers should have a policy of requiring reasonable accommodation requests to be made to a specific member of human resources or an appropriate manager. Employers also are allowed to ask for medical documentation of an employee’s mental health condition if the employee seeks time off work or some other reasonable accommodation, or if the employee exhibits difficulty performing his or her essential job duties.
Employees are not required to have any suggested accommodation in mind when they request a reasonable accommodation for their condition. Employers are required to engage in “an interactive process” with employees who request accommodation of their mental disabilities in the same way that they approach requests to accommodate physical disabilities. Each situation should be handled on a case-by-case basis. Employers may consider staffing or budgetary constraints when considering which accommodations are reasonable and which accommodations create an undue burden on the employers’ businesses. However, employers must document their consideration of various options and their interactions with employees requesting accommodations.
The new EEOC Guidance also addressed the legal mandate that employers keep the mental health conditions of employees confidential. This is nothing new, as the ADA has always mandated that employers respect employee confidentiality. There are only four circumstances under which an employer may inquire as to an employee’s mental health or other disability status:
1. If the employee requests a reasonable accommodation;
2. Prior to employment but after a conditional job offer has been made. In this case, any questions regarding mental health status that are asked of one applicant must be asked of everyone entering the same job category;
3. Affirmative action questionnaires may include questions about an employee’s medical history or disability status, but only if answering the question is voluntary and optional;
4. If the employer has objective evidence that the employee may be unable to do his/her job or poses a safety risk to the organization.
Unless one of these four limited circumstances apply, employers are barred from directly asking employees about whether they have any mental or physical health condition. In short, whether an employee has a disability is usually a private personal matter.
The ADA also forbids employers from engaging in discrimination or harassment of applicants and employees because of their mental or physical disabilities. This includes taking any unfavorable action against the applicants or employees because of their mental health conditions, such as firing them, refusing to promote them, or changing their pay or benefits.
Employers must tread carefully in this area. As societal understandings of mental health conditions progress, organizations will be expected to be more conscious of how these conditions impact employees. It is best to obtain counsel from a labor and employment lawyer to ensure compliance with this federal, anti-discrimination law.