The Equal Employment Opportunity Commission (EEOC) recently issued a resource document explaining the rights of job applicants and employees with mental health conditions. The document explains that applicants and employees with mental health issues are protected from discrimination and harassment based on their conditions, may be entitled to reasonable accommodations, and have a right to privacy regarding their medical information. 
Background
The EEOC’s resource document is titled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.” The document explains that the Americans with Disabilities Act (ADA) protects the rights of job applicants and employees with mental health conditions, including the right to be free from discrimination and harassment and the right to reasonable accommodations. The EEOC notes that employees and applicants may have additional rights under other laws such as the Family and Medical Leave Act (FMLA).
Discrimination
The ADA prohibits employers from discriminating against employees and job applicants based on their disabilities, including mental health conditions. The prohibition makes it illegal for an employer to fire an employee, reject an applicant for a job, pass over an employee for a promotion, or force an employee to take leave because of a mental health condition.
Employers need not hire applicants or retain employees in jobs they can’t perform. Also, employers need not employ people who pose a direct threat to safety—i.e., individuals who create a significant risk of substantial harm to themselves or others. In determining whether an applicant or employee can perform a particular job or poses a safety risk, employers cannot rely on myths or stereotypes about mental health conditions. The EEOC explains that before an employer can reject someone for a job based on a mental health condition, it must have objective evidence that the applicant can’t perform the job duties or that the employee would create a significant safety risk, even with a reasonable accommodation.
Reasonable accommodations
Like employees with other types of disabilities, employees who have mental health conditions may be entitled to reasonable accommodations to help them perform their jobs. Reasonable accommodations may include altered break and work schedules to permit an employee to attend 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 usually does not provide them), specific shift assignments, and permission to work from home.
An employee may be entitled to a reasonable accommodation if he has a mental health condition that would, if left untreated, substantially limit his ability to concentrate, interact with others, communicate, eat, sleep, care for himself, regulate his thoughts or emotions, or perform any other major life activity. A mental health condition does not necessarily have to be permanent or severe to be substantially limiting. Conditions like major depression, post-traumatic stress disorder, bipolar disorder, schizophrenia, obsessive compulsive disorder, and many other disorders typically qualify. A condition may qualify for a reasonable accommodation if it makes activities more difficult, uncomfortable, or time-consuming to perform than they are for most people. If an employee’s symptoms come and go, what matters is how limiting they are when they are present.
If an employee requests an accommodation, the employer may ask her to put the request in writing and to describe the condition and how it affects her work. The employer may ask the employee to submit a letter from her healthcare provider documenting her mental health condition and need for an accommodation and stating whether particular accommodations would meet the employee’s needs.
If a reasonable accommodation would help an employee with a mental health condition do his job, the employer must provide an accommodation unless it would entail significant difficulty or expense. If more than one accommodation would work, the employer can choose which one to provide. Employers may not retaliate against employees or applicants because they have requested a reasonable accommodation, and employers cannot charge employees or applicants for the cost of an accommodation.
An employee who cannot perform the essential functions of her job may be entitled to unpaid leave as a reasonable accommodation if the leave would help her get to a point where she can perform her job functions. An employee who is permanently unable to do her job may be entitled to reassignment to another job as a reasonable accommodation provided a job is available.
Privacy
Employees and job applicants are generally entitled to keep their medical information, including information about mental health conditions, private. An employer is permitted to ask an employee or applicant about his mental health only in the following situations:
- When an employee requests a reasonable accommodation;
- After the employer has made a job offer but before employment begins as long as all employees entering the same job category are asked the same questions;
- When the employer engages in affirmative action for people with disabilities (employees may choose whether to respond); and
- When there is objective evidence that an employee may be unable to do his job or pose a safety risk because of his condition.
An employee may have to disclose his mental health condition to his employer to establish his eligibility for benefits under laws such as the FMLA. If an employee discloses a mental health condition to his employer under those circumstances, the employer must keep the information confidential, including from coworkers.
Bottom line
It is important to remember that even though mental health conditions may not be visible in the same way physical health issues are, they are no different under the law. The ADA provides employees and applicants who have mental health conditions the same protection from discrimination and the same rights to accommodations that it gives to employees and applicants with physical health conditions. When employees request 
accommodations for mental health conditions, be open-minded and creative in looking for ways to help them perform their job functions. As with employees with physical health conditions, you may be required to provide unpaid leave or reassignment to accommodate an employee with mental health issues if no other accommodation would be effective.
Howard Fetner is an attorney with Day Pitney LLP, practicing in the firm’s New Haven, Connecticut, office. He may be contacted at hfetner@daypitney.com.
Need to learn more? Listen to “Anxiety, Workplace Stress and PTSD: HR’s Accommodation and Performance Management Roadmap” on demand. Attorney Patrice Nagle covers when you must accommodate an anxious or stressed-out employee under the ADA, how long do you keep an employee’s job open, what to do if your workplace is the cause of the worker’s stress or anxiety, and, perhaps most crucially, what you should do when you suspect a mental condition is affecting an employee’s job performance. She will also discuss case studies of recent situations involving anxious workers, what to do if an employee has a panic attack while at work or claims he or she can’t report to work because of one, and more. For more information, click here.