By: Karen L. Piper
On December 12, 2016, the EEOC issued a two-page “resource document” to explain to individuals with mental health conditions their rights as an applicant or employee under the Americans with Disabilities Act (ADA). The document is titled, “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.” The document is available here.
The document is comprised of eight questions and answers, such as “Is my employer allowed to fire me because I have a mental health condition?” Spoiler alert: The answer is “No.” The answer explains further that an employer cannot refuse to hire or terminate an individual because of a mental health condition. The answer also states that employers do not have to hire or retain persons who cannot perform the job or who pose a significant risk of substantial harm to themselves or others.
The document also addresses the issue of confidentiality. The document states individuals can keep their mental health condition private, except employers can ask medical questions in four situations:
1. When you ask for a reasonable accommodation.
2. After an employer has made a job offer, but before employment begins, as long as everyone entering the same job category is asked the same questions.
3. When an employer is engaging in affirmative action for persons with disabilities (such as an employer tracking the disability status of its applicant pool in order to assess its recruitment and hiring efforts, or a public sector employer considering whether special hiring rules may apply), in which case a response is optional.
4. On the job, when there is objective evidence that you may be unable to do your job or that you may pose a safety risk because of your condition.
In other words, if an individual seeks the ADA’s protections, the individual must provide information about his/her health status sufficient to allow the employer to verify disability status and provide reasonable accommodation.
The document also provides examples of possible accommodations EEOC considers reasonable, such as schedules changes, quiet office space or devices that create a quiet work environment, changes in supervisory methods (e.g., written instructions), specific shift assignments, and in some cases, telecommuting.
This resource document contains a link to a companion document for the individual’s health care provider: “The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work.” This document explains that “reasonable accommodation may be obtained for any condition that would, if left untreated, ‘substantially limit’ one or more major life activities, which include brain/neurological functions and activities such as communicating, concentrating, eating, sleeping, regulating thoughts or emotions, caring for oneself, and interacting with others.” The “condition does not have to result in a high degree of functional limitation to be ‘substantially limiting.’” Emphasis in original. A condition may qualify by “making activities more difficult, uncomfortable, or time-consuming to perform compared to the way that most people perform them.”
Though written for individuals, employers should check out these and other recently published resource documents targeted at individuals, i.e., one for those who are pregnant and one for those who have HIV infection. These documents provide user-friendly summaries of EEOC’s position on these issues. Employers should know what guidance employees may be getting from EEOC sources. Keep in mind, however, that EEOC’s position on these issues tends to be more employee-friendly than courts require. If you have questions about accommodating an individual’s disability, consult experienced employment counsel such as the author.
This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of Bodman PLC, which represents employers, only, in Workplace Law. Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or email@example.com.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information are included in the re-post of the article. December 2016.