EEOC Releases Guidance on Mental Health Conditions

The Equal Employment Opportunity Commission (EEOC) has released informal guidance for advising employees of their legal rights in the workplace with regard to depression, post-traumatic stress disorder (PTSD), and other mental health conditions. Although the guidance is geared to employees, it provides insight for employers as to the EEOC’s position on protections provided for employees under the Americans with Disabilities Act (ADA).

The guidance is provided in a question-and-answer format and covers the following areas:

Discrimination—The EEOC advises that it’s illegal for employers to discriminate against an individual because he or she has a mental health condition. The guidance explains the exceptions for individuals who pose a safety risk and for those who are unable to perform their job duties. It notes that an employer can’t rely on myths or stereotypes about a mental health condition when making its decision, but instead must base its decision on objective evidence.

Privacy/Confidentiality—The guidance explains that employees and applicants are entitled to keep their condition private and that employers are permitted to ask medical questions in four situations only:

• When an individual asks for a reasonable accommodation
• After a conditional job offer has been extended, but before employment begins (as long as all applicants in the same job category are asked the same questions)
• For affirmative action purposes—and a response must be voluntary
• When there is objective evidence that an employee may be unable to do his or her job (or may pose a safety risk) because of a medical condition

When medical information is disclosed, the guidance points out that employers must keep the information confidential—even from coworkers.

Job performance—Reasonable accommodation is the focus of the EEOC’s guidance in this area. It describes a reasonable accommodation as a type of change in the way things are normally done at work and gives the following examples:

• Altered break and work schedules (e.g., scheduling work around therapy appointments)
• Quiet office space or devices that create a quiet work environment
• Changes in supervisory methods (e.g., written instructions from a supervisor who does not usually provide them)
• Specific shift assignments
• Telecommuting

“Substantially limiting” condition—The guidance points out that a condition does not need to be permanent or severe to be substantially limiting under the ADA. A condition that makes activities more difficult, uncomfortable, or time-consuming to perform (when compared to the general population) may be substantially limiting, according to the EEOC.

And even if symptoms come and go, the guidance notes that “what matters is how limiting they would be when the symptoms are present.” It also notes that mental health conditions like major depressions, PTSD, bipolar disorder, and obsessive compulsive disorder “should easily qualify.”

In this section, the guidance is touching what the EEOC details in its regulations—that is, that an employer should not conduct an extensive analysis of whether a condition qualifies as a disability, but should instead focus on complying with the ADA’s antidiscrimination and reasonable accommodation requirements.

Reasonable accommodation—The guidance advises employees that they may ask for a reasonable accommodation at any time, but that it’s generally better to ask before any workplace problems occur because employers are not required to excuse poor job performance—even if it’s caused by a medical condition or the side effects of medication.

The guidance notes that an employer may ask an employee to put an accommodation request in writing and may ask for documentation from the employee’s healthcare provider about the condition and the need for accommodation.  The EEOC suggests that employees bring to their medical appointment a copy of the EEOC publication The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation.

The guidance adds that an unpaid leave may be a reasonable accommodation if the leave will help the employee get to a point where he or she can perform a job’s essential functions.  And if an employee is permanently unable to do his or her regular job, the guidance explains that the employee can request reassignment to another job, if one is available.

Harassment—The EEOC advises employees to tell their employer about any harassment if they want the employer to stop the problem.  The guidance recommends that employees follow the employer’s reporting procedures, and explains an employer’s legal obligation to take action to prevent future harassment.

The guidance provides a simple, straightforward explanation of an employee’s rights under the ADA.  It can help employers understand how the EEOC may view an employer’s obligations and what the agency expects, and permits, employers to do.

The guidance is available online at the EEOC’s website.