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On December 12, 2016 the U.S. Equal Employment Opportunity Commission (EEOC) published new Guidance, “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.” The Guidance is written for (1) individuals as applicants or employees; (2) it also addresses employer’s rights; and (3) includes a complementary publication for health care providers.
Why now? EEOC charge data shows that charges of discrimination based on mental health conditions are on the rise. EEOC Chair Jenny R. Yang explains in part, “In our recent outreach to veterans who have returned home with service-connected disabilities, we have seen the need to raise awareness about these issues.”
A Balanced Approach. The Guidance (1) reminds applicants and employees of their rights; (2) addresses rights of employers; and (3) provides tips for health care providers. Examples include:
- the obligation of employers to provide reasonable accommodation and not discriminate
- employers’ right to not continue to employ any person who can't perform the job or who poses a direct threat to safety;
- an individual’s right to keep his or her medical condition private balanced with certain employers’ obligations to engage in affirmative action or to establish an individual’s eligibility for benefits under other laws
What if there's no way I can do my regular job, even with an accommodation? This is one question addressed in the Guidance. The answer reads, “If you are permanently unable to do your regular job, you may ask your employer to reassign you to a job that you can do as a reasonable accommodation, if one is available.” Here is where some courts and the EEOC part ways. Once the employee asks for a transfer to a vacant position,
must
the employer place that the employee in that position even if there is a more qualified candidate? The EEOC’s answer is, “Yes.” Read the article below for one of several courts’ opposing answer.
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