Most employers are aware that Title I of The Americans with Disabilities Act (ADA) and the Americans with Disabilities Act Amendments Act (ADAAA), prohibit employers from discriminating against applicants and employees on the basis of an actual, perceived, or record of disability. Many employers are also aware that the ADA/ADAAA requires them to provide reasonable accommodations to applicants and employees with disabilities. Often however, employers focus on the physical conditions, and may forget that the ADA also protects persons with mental impairments. Well, fear not, the EEOC is here to remind you of that fact in its new resource documents on the rights of individuals with mental health impairments under the ADA. What are these documents? What do they say? Has anything with the ADA or its interpretation changed recently? If not, why did the EEOC issue them? Let’s find out, after the jump…
(image from justiceinourcourts.org)
Let’s start with the last two questions. No, nothing significant has changed with the ADA itself or its interpretation. So why did the EEOC generate these documents–and why now? Per the EEOC:
EEOC charge data shows that charges of discrimination based on mental health conditions are on the rise. During fiscal year 2016, preliminary data shows that EEOC resolved almost 5,000 charges of discrimination based on mental health conditions, obtaining approximately $20 million for individuals with mental health conditions who were unlawfully denied employment and reasonable accommodations.
What’s in the actual documents? The first guidance, entitled Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights, is geared toward employees, but can still be helpful to us. First, it is illegal to either refuse to hire, fire or otherwise treat any employee less favorably than others, simply because s/he has a mental condition. The EEOC also makes it clear that you “cannot rely on myths or stereotypes” about a particular mental condition, when deciding whether an applicant/employee can perform the job in question or whether, due to his/her condition, s/he poses a safety risk. The EEOC in this guidance also clearly tells employees, that “If you have depression, post-traumatic stress disorder (PTSD), or another mental health condition, you are protected against discrimination and harassment at work because of your condition, you have workplace privacy rights, and you may have a legal right to get reasonable accommodations that can help you perform and keep your job.” (Please note, however that the ADA does specifically exclude behaviors resulting from illegal use of drugs kleptomania, pyromania, compulsive gambling and certain sexual disorders.)
What are the employee’s privacy rights referenced above? For starters, employees do not need to disclose a condition, s/he needs a reasonable accommodation in order to perform the essential job functions. Furthermore, you cannot ask the employee or, for that matter, an applicant, if s/he has or ever had a mental health condition, or ask any medical questions, unless: a) the employee/applicant requests a reasonable accommodation; b) it is after you extend a conditional job offer, but before the employee has begun employment, and you ask the same questions of anyone else in the same job category; c) you are engaging in affirmative action (i.e. you are a federal contractor or sub-contractor) and you are tracking your efforts in hiring individuals with disabilities — in which case the employee/applicant may choose but does not have to respond; d) on the job, there is objective evidence that the employee cannot perform essential job functions or that s/he may pose a safety risk due to his/her condition.
What if the employee’s mental condition affects his/her ability to perform the job in question? S/he may be entitled to some change in the way you normally require things to be done at your workplace. This is known as a reasonable accommodation. Changes in scheduling, minor changes in the workspace, ability to work from home are some examples. As in any situation involving a disability, what constitutes a reasonable accommodation will depend very much on the specific circumstances. An employee may be entitled to a reasonable accommodation for any condition that, left untreated would “substantially limit” a major life activity, such as, the ability to concentrate, interact with others, sleep, regulate thoughts, control emotions. Please note that a condition can be substantially limiting, even if it is not permanent or severe. If the condition in question makes certain activities more difficult or time-consuming or uncomfortable for the employee to perform compared to others without that same condition, then the employee may be entitled to a reasonable accommodation. The employee need not stop treatment to qualify, and the symptoms need not be continuous, but can come and go. The relevant inquiry is whether the symptoms, when they occur, are substantially limiting. Specifically, according to the EEOC, “Mental health conditions like major depression, post-traumatic stress disorder (PTSD), bipolar disorder, schizophrenia, and obsessive compulsive disorder (OCD) should easily qualify, and many others will qualify as well.”
As with other conditions, you have a right to offer an alternative accommodation to the one your employee seeks if it will address the specific challenges posed by the employee’s condition. If the employee refuses that accommodation you generally will have to further obligation. If you can show that the accommodations needed would pose an undue hardship (not just an inconvenience) then you may not have to accommodate the employee in that position.
Now, as with any condition that may trigger ADA protections, if the employee cannot perform essential job functions even with an accommodation, and: a) you do not have another job available that the employee could perform (with or without a reasonable accommodation); and/or b) paid or unpaid leave time would not ultimately enable the employee to perform the essential job functions, then you do not have to retain the employee.
What if by reason of a mental health condition the employee has violent outbursts or similar issues? Do you have to accommodate that employee — or even hold onto the employee? That depends on whether the outbursts pose an actual safety risk to other employees or the public (or somehow pose some other documented undue hardship). If an employee’s mental condition renders him or her a safety risk to him/her self or others when s/he experiences symptoms then you do not have to accommodate that employee. Even the EEOC acknowledges that.
So there you have it. If you want to get the actual words straight from the EEOC, you can find the guidance here. There is also a guidance for mental health providers, which you can find here. While much of what we looked at is true for all disabling conditions, the main point is that employers should not forget that psychiatric and other mental conditions are also protected under the ADA.
OK, that’s all I’ve got for now. We’ll pick up again next week. Until then, Happy New Year to all of you!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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