EEOC Issues New Guidance on Accommodating Mental Health Disorders

Bernadette Hunton
Bernadette Hunton

The EEOC issued a resource document last month that discusses employee rights in the workplace related to mental health conditions.  Below is a summary of key points:

  1. It Is Illegal to Discriminate Against an Employee Based on a Mental Health Condition.

Discrimination includes, among other things, discharge, failure to hire or promote, and forced leave.  Employers are not required to hire or retain employees who pose a “direct threat” to safety (significant risk of substantial harm to self or others), but assessments cannot be made based on myths or stereotypes.

Employer Tip:  Update job descriptions to ensure accurate reflection of job duties.  When making an employment decision based on an employee’s condition, ensure that you have objective evidence about an employee’s ability to perform job duties.

  1. Employees Have a Right to Keep Their Mental Health Condition Private.

An employer is prohibited from asking about a mental health condition unless:

  1. An employee requests a reasonable accommodation;
  2. A job offer has been extended and the employer asks all employees the same questions;
  3. An employer is engaging in affirmative action for people with disabilities, in which case an employee can choose to respond;
  4. An employer has objective evidence that an employee may be unable to perform the job or poses a safety risk; or
  5. It is necessary to determine eligibility for benefits under other laws such as FMLA.

Employer Tip: Keep disclosed information confidential.  Although co-workers may have concerns, employers are prohibited from sharing details about an employee’s health condition.

  1. Reasonable Accommodations are Required for Mental Health Conditions.

Employees can get a reasonable accommodation for any condition that substantially limits their ability to concentrate, interact with others, communicate, eat, sleep, care for oneself, regulate thoughts or emotions, or do any other “major life activity.”

Possible accommodations include: altered break and work schedules, quiet office space, change in supervisory methods, specific shift assignments, and telework arrangements.

Employer Tip: Guidance suggests that employees may want to use more general terms when approaching an employer such as “anxiety disorder.” This may cause skepticism on an employer’s part about whether the employee is “really” disabled.  Assume that an employee who presents a health condition as a barrier to performance is disabled.  You may request certification from a health care provider to confirm, provided you do this for all health conditions.

  1. Employees May Be Entitled to Unpaid Leave Even if Leave is Exhausted.

Employees who can’t perform the essential functions of their job may be entitled to unpaid leave as a reasonable accommodation, even if leave is exhausted, if the leave will help the employee get to a point where job duties can be performed.  Employees may also request reassignment to a new job.

Employer Tip: At a minimum, the EEOC expects employers to engage in a discussion with the employee about possible accommodations, if requested.





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