By Joan Farrell, JD
The Equal Employment Opportunity Commission (EEOC) has released an 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. BLR® Senior Legal Editor Joan Farrell, JD, has what you need to know in today’s and tomorrow’s Advisor.
Although the guidance is geared toward employees, it provides insight for employers as to 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. The guidance 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; and
- 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 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
In tomorrow’s Advisor, Farrell discusses more mental health guidance from the EEOC.