The Equal Employment Opportunity Commission (EEOC) recently published an informal publication outlining the rights of employees who suffer from depression, post-traumatic stress disorder (PTSD), and other mental health conditions under the Americans with Disabilities Act (ADA). Although nothing new per se, the publication serves as a great reminder as to the rights of employees with mental health conditions. The guidance addresses the following topics:
Discrimination. An employer may not discriminate against an employee — which includes firing, rejecting for a job or promotion, and forcing to take leave — simply because he or she has a covered mental health condition or has asked for a reasonable accommodation.
Privacy/Confidentiality. An employer may only ask medical questions (including questions about mental health) in the following situations:
- When an employee asks for a reasonable accommodation.
- After it has made a job offer, but before employment begins, as long as everyone entering the same job category is asked the same questions.
- When it is engaging in affirmative action for people with disabilities, in which case an employee may choose whether to respond.
- On the job, when there is objective evidence that an employee may be unable to do his or her job or that the employee may pose a safety risk because of the condition.
- To establish eligibility for benefits under other laws, such as the Family and Medical Leave Act (FMLA).
If an employee informs an employer about a condition, the employer cannot discriminate against the employee, and it must keep the information confidential.
“Substantially limiting” condition. A condition does not have to be permanent or severe to qualify. What matters is that the condition — when the symptoms are present — makes activities more difficult, uncomfortable, or time-consuming.
Reasonable Accommodation. The guidance encourages employees to ask for a reasonable accommodation before any problems occur or become worse. The EEOC gives the following examples of reasonable accommodations:
- 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 usually does not provide them);
- Specific shift assignments; and
- Permission to work from home.
The guidance notes that where an employee cannot perform all the essential functions of the job and no paid leave is available, 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 those functions. Remember that an employer must provide a reasonable accommodation unless it involves substantial difficulty or expense.
Harassment. The guidance reiterates that harassment based on disability is prohibited under the ADA, and that employees should follow employers’ reporting procedures to report any harassment.
We suggest that you review the guidance and make sure that your current policies and practices comply.