Last month, the U.S. Equal Employment Opportunity Commission ("EEOC") issued a resource document explaining the "important protections" the Americans with Disabilities Act affords to individuals with mental health conditions in the workplace.
The document, entitled "
Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights
," affirms that individuals with depression, post-traumatic stress disorder and other mental health conditions are protected against discrimination and harassment in the workplace because of their condition to the same extent as employees suffering from any other health condition. As one would expect, the law prohibits an employer from firing, refusing to promote promotion, or forcing to take leave an individual with a mental health condition simply because he or she has a mental health condition. The EEOC resource document reiterates the basic rule that before an employer can reject an employee with a mental health condition for a job based on his or her condition, it must have objective evidence that he or she cannot perform their job duties, or that he or she would create a significant safety risk, even with a reasonable accommodation.
Employees with mental health conditions also are entitled to workplace privacy rights and may have a legal right to obtain reasonable accommodations that can help them perform and keep their job.
The EEOC advisory is largely in the format of a series of questions and answers, explaining in detail issues concerning discrimination, privacy, reasonable accommodations, and harassment of individuals with mental health issues.
Of particular interest, the EEOC emphasizes that, in most situations, employees have the right to keep their condition private. It advises that an employer may ask medical questions, including about mental health, in only four situations:
- when an individual with a mental health condition asks for a reasonable accommodation;
- after the employer 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 the individual may choose whether to respond; and
- on the job when there is objective evidence that the individual with a mental health condition may be unable to perform his or her job or may pose a safety risk because of the condition.
However, California employers must keep in mind that they are not permitted to ask about the employee's diagnosis even if one of the above factors is present.
The EEOC also provides guidance on the rights of individuals regarding reasonable accommodation, saying that if their mental health condition affects their job performance, an employer may be obligated to provide various types of reasonable accommodations. These may include altered break and work schedules, quiet office space or devices that create a quiet work environment, changes in supervisory methods, specific shift assignments and permission to work from home. The EEOC explains that an employee may obtain a reasonable accommodation for any mental health condition that would, if left untreated, "substantially limit" the employee's ability to concentrate, interact with others, communicate, eat, sleep, care for oneself, regulate the employee's thoughts or emotions, or any other "major life activity."
The EEOC advisory does not reflect any new law or regulation or changes in the law. Rather, it serves as a reminder of the importance of treating employees with mental health conditions the same as employees with other health conditions. The reminder is a timely one. The EEOC notes that discrimination charges based on mental health conditions are on the rise. According to its preliminary data, the EEOC resolved nearly 5,000 such charges during fiscal year 2016, yielding about $20 million for individuals with mental health conditions who were unlawfully denied employment and reasonable accommodations. Given the potential loss exposures, employers would be well-served by giving serious consideration to the points covered in the EEOC advisory.
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Richard S. Rosenberg
Katherine A. Hren
Zareh A. Jaltorossian
Ballard Rosenberg Golper & Savitt, LLP