By: Lauren G. Goetzl
On December 12, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) released a new publication detailing the rights of employees with depression, post-traumatic stress disorder, and other mental health conditions in the workplace. Although the EEOC’s publication focused on employees’ rights under the Americans with Disabilities Act, employers who have employees suffering from mental health conditions should be aware of their potential obligations under other federal laws as well, including the Family and Medical Leave Act (“FMLA”) and the Genetic Information Nondiscrimination Act (“GINA”).
There has been an uptick in charges of discrimination based upon mental health conditions and the EEOC resolved almost 5,000 charges of discrimination based on mental health conditions and obtained approximately $20 million for those claimants in 2016 alone. As a result, EEOC Chair Jenny R. Yang noted that the EEOC released this new publication to remind “[e]mployers, job applicants, and employees . . . that mental health conditions are no different than physical health conditions under the law,” and to “clarify the protections that the ADA affords employees.”
Employers should refrain from asking medical questions, including questions about an employee’s mental health, in all but five situations:
- When an employee asks for a reasonable accommodation;
- After the employer has made the employee 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 (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 the employee may choose whether to respond;
- On the job, when there is objective evidence that the employee may be unable to do his job or that he may pose a safety risk because of his condition; and
- To establish eligibility for benefits under other laws, such as leave under the FMLA.
In addressing reasonable accommodations for employees with mental health conditions, employers should follow the same processes that they would in accommodating employees with physical disabilities. First, the employer should obtain information from the employee and/or his or her health provider to establish that the employee has a disability, a condition that, left untreated, would “substantially limit” the employee’s ability to concentrate, interact with others, communicate, eat, sleep, care for himself, regulate his thoughts or emotions, or engage in any other “major life activity.” The EEOC notes that mental health conditions need not be permanent or severe to be substantially limiting but rather may qualify by “for example, making activities more difficult, uncomfortable, or time-consuming to perform compared to the way that most people perform them.” The EEOC also notes that “[m]ental 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 all interactive processes, employers should limit the number of people with access to information about the employee’s mental health condition to minimize exposure to claims of ADA or GINA discrimination.
After establishing that the employee’s mental health condition is a disability, the employer should engage in an interactive discussion with the employee about the essential functions of his position, as well as what accommodations the employee needs. The EEOC offers several examples of possible reasonable accommodations for employees with mental health conditions, including altered break and work schedules (e.g., scheduling work around therapy appointments), quiet office space or devices that create a quiet work environment, changes in supervisory methods (e.g., written instructions from a supervisor who usually does not provide them), specific shift assignments, and permission to work from home. If the employee cannot complete the essential functions of his current position even with an accommodation, an employer should look at whether an employee can be accommodated in a vacant position or whether the employee can be accommodated with unpaid leave, including leave under the FMLA.
Outside of the reasonable accommodation framework, employers should treat employees with mental health conditions the same as all other employees. Employers do not have to excuse an employee’s failure to meet standards that are consistently applied, even if the failure was caused by an employee’s health condition or the side effects of medication. However, an employer should be sure to document employees’ failures and to ensure that it is acting consistently with regard to all employees before it takes an action against an employee with a mental health or other disability, including terminating, selecting another employee for a job or a promotion, or forcing an employee to take a medical leave of absence. Employers also do not have to employ people who pose a “direct threat” to safety, namely, employees who pose a significant risk of substantial harm to themselves or others. The EEOC notes, however, that employers “cannot rely on myths or stereotypes about [an employee’s] mental health condition when deciding whether [he] can perform a job or whether [he] pose[s] a safety risk,” rather, an employer “must have objective evidence that [the employee cannot] perform [his] job duties, or that [he] would create a significant safety risk, even with a reasonable accommodation.”
Employers will likely continue to see an increase in the number of employees seeking accommodations for mental health conditions, and the EEOC is paying close attention to such matters. Employers are highly encouraged to seek counsel from employment attorneys well-versed in employment law to ensure compliance with current legal authority.