Why it matters

The Equal Employment Opportunity Commission (EEOC) published a new resource document, "Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights," explaining the rights afforded to employees with mental health conditions pursuant to the Americans with Disabilities Act (ADA). In addition to outlining the protection against discrimination and retaliation for job applicants and employees with mental health conditions, the document also discusses reasonable accommodations, or "work adjustments that can help individuals to perform their jobs and remain employed." The agency described types of accommodations, restrictions on employer access to medical information, and confidentiality. Charges of discrimination based on mental health conditions are on the rise, the EEOC said, with the agency resolving almost 5,000 charges and recovering roughly $20 million for workers during fiscal year 2016.

Detailed discussion

With discrimination and retaliation claims based on mental health conditions on the rise, the Equal Employment Opportunity Commission (EEOC) published a new resource document on the topic. "Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights" explored the protections for workers suffering from a mental health condition available under the Americans with Disabilities Act (ADA).

The agency set forth three primary forms of protection for workers: a shield against discrimination and harassment, the existence of workplace privacy rights, and the right to obtain reasonable accommodations. Discrimination can occur in a variety of forms, the EEOC said, from termination, rejection for a job or an internal promotion, or forcing a worker to take leave.

First, employers do not have to hire or keep people in jobs if they can't perform the work or if they pose a "direct threat" to safety, defined by the agency as "a significant risk of substantial harm to self or others." But employers cannot "rely on myths or stereotypes" about mental health conditions and must have objective evidence that an employee cannot perform job duties or creates a safety risk—even with a reasonable accommodation—before taking negative action.

Second, as for employee privacy, a worker's condition can remain private in most situations. Employers are permitted to ask medical questions in four situations, however: (1) when a worker requests a reasonable accommodation; (2) after a job offer has been made but before employment begins so long as everyone entering the same job category is asked the same questions; (3) when engaging in affirmative action for people with disabilities; and (4) on the job, when objective evidence exists that an employee may be unable to perform job duties or poses a safety risk.

Finally, reasonable accommodations—such as altered break and work schedules, quiet office space, or permission to work from home—are available for mental health conditions "that would, if left untreated, 'substantially limit' your ability to concentrate, interact with others, communicate, eat, sleep, care for yourself, regulate your thoughts or emotions, or do any other 'major life activity,' " the EEOC explained.

A condition does not have to be permanent or severe, and conditions including major depression, post-traumatic stress disorder, bipolar disorder, schizophrenia, and obsessive-compulsive disorder "should easily qualify," the agency said.

To obtain a reasonable accommodation, ask for one at any time, the EEOC instructed, suggesting that "it is generally better to get a reasonable accommodation before any problems occur or become worse." Employees do not need to have a particular accommodation in mind but can ask for something specific.

Employers are allowed to ask for an accommodation request in writing, a description of the condition and how it impacts the job, as well as a letter from a healthcare provider documenting the condition. Unless the accommodation involves significant difficulty or expense, employers must provide it, the agency wrote, although the employer may make a selection among choices if more than one accommodation would work.

If an employee still can't perform all the essential functions of a job to normal standards and has no paid leave available, he or she may still be entitled to unpaid leave as a reasonable accommodation, the EEOC said, "if that leave will help [the employee] get to a point where [he or she] can perform those functions." Workers also have the option of asking their employer to be reassigned to a different position as a reasonable accommodation.

Finally, the resource document noted that the ADA prohibits harassment and advised employees to follow their employer's reporting procedures in order to stop the problem.

"Many people with common mental health conditions have important protections under the ADA," EEOC Chair Jenny R. Yang said in a statement. "Employers, job applicants, and employees should know that mental health conditions are no different than physical health conditions under the law. In our recent outreach to veterans who have returned home with service-connected disabilities, we have seen the need to raise awareness about these issues. This resource document aims to clarify the protections that the ADA affords employees."

To read the EEOC document, click here.