In an end-of-year “user friendly” publication entitled Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights, the Equal Employment Opportunity Commission has underscored its commitment to workers with mental disabilities. The publication (described by the EEOC as a “Resource Document”), speaks directly to applicants and employees, provides them with information about their rights under the Americans With Disabilities Act of 1990 (ADA), and offers them practical advice. Emphasizing the significance of mental disability discrimination, the EEOC notes that charges of discrimination based on mental health conditions are on the rise. Further, preliminary statistics separately released by the Commission show that it obtained approximately $20 million for individuals with mental health conditions during 2016.
The Resource Document instructs employees how to secure an accommodation and emphasizes the role of the EEOC in enforcing their rights. It also refers readers to a related EEOC Fact Sheet issued earlier in 2016, The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work, which briefly explains the law of reasonable accommodation and the mental health provider’s role in the accommodation process. These publications, the preliminary charge data for 2016, and the Commission’s enforcement-related recoveries strongly suggest that the rights of applicants and employees with mental health conditions will be among the EEOC’s higher priorities during 2017. Employers should be prepared.
Protection for a Wide Array of Mental Conditions
Although the EEOC chose to identify depression and posttraumatic stress disorder (“PTSD”) in the title of the Resource Document, these are but two of the more than 250 diagnoses identified in the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association. Although not all such conditions will qualify an individual for protection under the ADA, many will. The EEOC informs employees that they can secure a reasonable accommodation for any mental health condition that would, if left untreated, substantially limit their ability to concentrate, interact with others, communicate, eat, sleep, care for themselves, regulate their thoughts or emotions, or do any other major life activity. The Commission also informs employees that their condition does not need to be permanent or severe to be substantially limiting. It may qualify by making activities more difficult, uncomfortable, or time-consuming to perform compared to the way that most people perform them. Major depression, PTSD, bipolar disorder, schizophrenia, and obsessive compulsive disorder (OCD) should, according to the EEOC, “easily qualify.”
The EEOC’s description of expansive coverage for individuals with mental conditions relies upon its Final Regulations implementing the ADA Amendments Act, published in 2011. Those regulations provide the same examples of mental conditions that the EEOC states in the Resource Document should easily be concluded to be disabilities. Employers should also be aware that state and local fair employment agencies may take the position that these mental conditions, and others, readily qualify as protected impairments under local and state laws, such as New York State’s Human Rights Law and California’s Fair Employment and Housing Act, as well as the ADA.
Myths or Stereotypes About Mental Health Conditions Must Be Rejected
The Resource Document reassures readers that employers may not fire them, reject them for a job or promotion, or force them to take a leave of absence, because of a mental condition that qualifies as a disability. The EEOC explains that while an employer does not have to hire individuals for jobs they cannot perform, or employ individuals who pose a “direct threat” to safety, it cannot rely on myths or stereotypes about mental health conditions when deciding whether an individual can perform a job or poses a safety risk. The Resource Document underscores the general rule: objective evidence should be the touchstone of an employer’s analysis of whether an individual with a mental condition can perform his or her job duties, or poses a significant safety risk, even with a reasonable accommodation.
How Employees Can Request a Reasonable Accommodation
The Commission’s advice to employees is straightforward: “Ask for one. Tell a supervisor, HR manager, or other appropriate person that you need a change at work because of a medical condition. You may ask for an accommodation at any time.” Unfortunately, an “other appropriate person” is undefined and subject to unduly expansive interpretation by employees. Employers may, however, identify in employee handbooks and applicable policies appropriate recipients of accommodation requests. The list, which EEOC suggests should be non-exclusive, should include human resources personnel and direct supervisors. Employers should be aware, however, that in EEOC’s view, just as there are no “magic words” for employees to request accommodations, there is no “magic process” that employees must follow. When employers become aware of a request for reasonable accommodation, regardless of the source of the information, they should engage in the interactive process with employees.
The Resource Document describes certain limitations employers may place on accommodation requests, such as asking that requests be put in writing with a general description of the condition and how it affects the employee’s work, and requiring verification from the employee’s health care provider. However, the Resource Document also reassures readers that no employer can legally fire, refuse to hire, or fail to promote someone because she or he asked for a reasonable accommodation, or simply needs one. In bold-faced type before the document concludes, the EEOC reminds readers that it is illegal for an employer to retaliate against an employee for contacting the EEOC or filing a charge, and provides detailed information about how to submit a complaint.
What Happens When Mental Health Conditions Affect Job Performance?
Employees and employers alike sometimes struggle to define the appropriate response to performance problems caused by mental conditions. In an unambiguous statement that employers will welcome, the Resource Document informs employees, “[A]n employer does not have to excuse poor job performance, even if it was caused by a medical condition or the side effects of medication.” Indeed, employers are permitted to conduct the same kind of constructive and disciplinary counseling that they would use for other employees. A disability, in and of itself, is not a defense to poor performance.
The Resource Document advises employees to request an accommodation before any problems occur or become worse. And, it reminds them that they “may” have a right to a reasonable accommodation that helps them to do their job, such as 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. The EEOC’s use of the word “may” with respect to an employer’s potential obligations is critical; reasonable accommodation does not arise from a blanket prescription untethered from the facts. Rather, it flows from an individualized analysis of the employee’s circumstances, appropriate medical information, and the requirements of the job.
Privacy and Confidentiality
Because of the inherently personal nature of information about mental conditions, the EEOC’s regulations implementing the ADA have long focused on how to balance the confidentiality of an employee’s mental health information, on one hand, against an employer’s need for objective information about the employee’s condition and need for accommodation, on the other. The Resource Document reassures readers that “in most situations you can keep your condition private.” This will be regarded by some as overly simplistic reassurance.
While the EEOC’s reassurance to employees is consistent with the general proposition that medical information is private, that is far from the end of the analysis. The EEOC previously published several enforcement guidance documents devoted to the intricacies and permissibility of disability-related inquiries by employers. They make clear that in certain situations, subject to limitations, employers may seek details about an employee’s mental health from employees and their medical providers. Indeed, the Resource Document confirms that the scope of permissible inquiry varies depending on the situation; an employer “may” be able to request documentation from a mental health provider in support of a request for accommodation, and an employee “may” be able to divulge only the general nature of his or her mental condition rather than a specific diagnosis.
The Resource Document identifies four general situations when an employer is allowed to ask medical questions, including questions about mental health:
- When an employee requests reasonable accommodation;
- After an employer extends a job offer, but before employment begins, as long as everyone entering the same job category is asked the same questions;
- When an employer is engaging in certain affirmative action for people with disabilities; and
- When there is objective evidence that an employee may be unable to do the job or may pose a safety risk because of his or her condition.
In these situations, the permissible scope of mental health inquiries often requires consideration of the EEOC’s prior enforcement guidance, the regulations implementing the ADA, and case law addressing the EEOC’s regulations. Ultimately, employers have viable options to request information about an employee’s medical condition (including mental health) in several situations, but are well advised to do so only after thorough factual and legal analysis.
Next Steps for Employers
The start of a new year provides employers with an excellent opportunity to:
- Review and revise handbook provisions, policies and procedures addressing employees with disabilities.
- Ensure that practices are in place to maintain the confidentiality of any employee psychiatric or medical information and records, including its separation from ordinary personnel records.
- Review any personality tests or psychometric tests used in hiring, promotion or other selection decisions for ADA compliance.
- Assess the process used to consider common requests for accommodations by employees with mental conditions, such as altered work or break schedules, leaves of absence, work at home, transfers to other positions or shifts, altering work stations or environments, and changes to supervisory methods. Designating individuals responsible for coordinating and/or reviewing all requests for accommodation can help to ensure consistent and appropriate responses.
- Become familiar with on-line resources such as The Job Accommodation Network (JAN) or DisabilityInfo.gov, which are available free of charge to employers and employees contemplating reasonable accommodation issues and can be useful sources of information.
- Plan and conduct training for human resources personnel and managers. Training should focus not only on their handling of accommodation requests, but on the process to follow when other issues arise, particularly sensitive decisions regarding requests for psychiatric information and fitness-for-duty psychiatric examinations.
Even with such preparation, employee mental conditions can pose unique challenges for employers because psychiatric expertise is beyond the realm of most managers’ and human resources professionals’ common knowledge. Many medical professionals who have not had substantial training in psychiatry or psychology also lack such expertise. In order to secure the best resources when complex ADA mental disability questions arise, employers should consider taking two proactive steps:
- Identify and establish relationships with legal counsel who have expertise in mental health and disability issues; and
- Identify mental health professionals in the community who can serve either as consultants or clinicians when fitness-for-duty or direct threat psychiatric evaluations are necessary, or more complex accommodation issues arise.
 29 CFR § 1630.2 (2011).
 JAN is a service of the President’s Committee on Employment of People with Disabilities which, in turn, is funded by the U.S. Department of Labor. JAN can be reached at: 1-800-ADA-WORK or through its website: http://www.jan.wvu.edu/links/adalinks.htm. Another online resource is DisabilityInfo.gov, which provides people with disabilities and employers information on a host of cross-cutting topics, including resources on job accommodations and employment programs. Its website is: http://www.disabilityinfo.gov/.