In 2016, the Equal Employment Opportunity Commission (EEOC) noted a rise in claims of discrimination based on mental health conditions. Almost 5,000 such charges resulted in some $20 million for claimants unlawfully denied employment and reasonable accommodations. Even though the Americans with Disabilities Act (ADA) has not changed protections for such employees, the EEOC issued a “resource document” intended to clarify workplace rights for employees with mental health conditions. “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights” is directed to employees, but contains some helpful takeaways for employers.
Discrimination against employees with a mental health condition is illegal.
Employers cannot hire, fire, deny a job or promotion, or require a leave of absence based solely on an employee’s mental health condition absent extraordinary circumstances. Employment-related decisions related to an employee’s mental health condition must be supported by objective evidence, not myths or stereotypes about mental illness. The latest EEOC guidance does not define “objective evidence,” but the agency generally requires careful documentation.
Employees have the right to privacy concerning mental health conditions.
The ADA allows employers to ask for health information only if:
- The employee asks for a workplace accommodation.
- Medical information or testing is part of the usual process for all incoming employees post-offer, but pre-employment, or required by federal or state law.
- The employer engages in affirmative action for people with disabilities.
- Objective evidence exists to suggest the employee cannot do the job or poses a safety risk.
An employee whose mental health condition might affect job performance can ask for reasonable accommodation.
In its recent report, the EEOC defines a reasonable accommodation as “some type of change in the way things are normally done at work.” The ADA, however, requires accommodation only if it allows the employee to perform the essential functions of the job.
An employee must, in most cases, ask for a reasonable accommodation in order to get one.
Because of an employee’s right to privacy, it is typically his or her duty to request an accommodation. Nonetheless, an employer may have a duty to initiate a dialogue about the situation and/or the need for accommodation in rare circumstances in which an employee’s behavior is obviously tied to a mental health condition or the employer becomes aware of the mental health condition from a third party, usually a colleague or family in which the employee has confided. (An employer may receive—but should not seek— such information from a third party.) Employers have a right to ask for written verification of the medical condition and the need for accommodation, and can ask the healthcare provider about what specific kinds of accommodations would meet the needs of the employee in question.
If an accommodation poses undue hardship, the employer is not required to grant it.
Even if the need for a reasonable accommodation has supporting medical documentation, an employer is not required to provide accommodations that present “significant difficulty or expense.”
In cases where an employee cannot perform the essential functions of the job, even with an accommodation, the employee has the option of asking for unpaid leave to recover to the point of being able to do the job, in some cases, unpaid leave beyond that which is normally permitted by the employer may be a reasonable accommodation. An employee may also seek reassignment, provided another position is available for which the employee is qualified. Detailed information on such alternatives — and reasonable accommodation in general — is available at the EEOC website. However, the process and definitions around these issues often is complex and confusing, so legal counsel can be valuable in ensuring compliance. We are happy to help you navigate this and any matters of labor and employment law.