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 at https://www.eeoc.gov/eeoc/publications/mental_health.cfm
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.” An employer cannot refuse to hire or terminate an individual because of a mental health condition. The answer explains further 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 addresses the issue of confidentiality. Individuals can keep their mental health condition private, except that employers can ask medical questions in four situations:
1. When the employee asks or 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 for its affirmative action program, or a public sector employer considering whether special hiring rules may apply), in which case a response by the applicant is optional.
4. On the job, when there is objective evidence that the employee may be unable to do his/her job or that s/he may pose a safety risk because of his/her condition.
In other words, when 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 lists examples of possible accommodations the 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.” This document states the EEOC’s position that 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 EEOC resource documents targeted at individuals, i.e., one for those who are pregnant and one for those who have HIV infection. These documents provide a user-friendly summary of the EEOC’s position on these issues. An employer who complies with the guidance in these documents should be in full compliance with the ADA. Keep in mind, however, that the EEOC’s position on these issues may 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 firstname.lastname@example.org.
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. February 2017.