EEOC Reminds Employers Mental Illness Is Protected Under ADA

The EEOC recently sent a strong reminder that the ADA applies equally to physical and mental illness.

The Equal Employment Opportunity Commission (EEOC) recently sent a strong reminder that the Americans With Disabilities Act (ADA) applies equally to physical and mental conditions. The agency published several documents regarding the rights of individuals with mental health impairments under the ADA.

ADA Charges Involving Mental Illness on the Rise

To start, the EEOC guidance does not provide any new legal interpretations regarding how the ADA applies to mental illness. Rather, it is intended to make sure employees understand their rights. As the EEOC explained in a press statement:

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.

EEOC Guidance Highlights ADA Compliance Issues

As employers should be aware, the ADA protects job applicants and employees with mental health conditions from employment discrimination and harassment based on their conditions. It may also entitle them to reasonable accommodations at work. The EEOC’s latest guidance, entitled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights,” addresses a range of questions employee may have regarding how to get an accommodation, the types of accommodations available, and restrictions on employer access to medical information, confidentiality, and the role of the EEOC in enforcing the rights of people with disabilities.

EEOC Guidance Regarding Mental Illness

While the document is not geared towards employers, the EEOC guidance highlights several important ADA compliance issues that often arise when dealing with workers with mental illness. Below are several key takeaways:

• Avoiding stereotypes

The EEOC emphasizes employers “can’t rely on myths or stereotypes” about mental health conditions when deciding whether an applicant or employee can perform a job or poses a safety risk. Rather, employers must have objective evidence that the worker can’t perform the required job duties, or that they would create a significant safety risk, even with a reasonable accommodation 

• Privacy rights

The EEOC highlights the importance of confidentiality, specifically noting that employers are only authorized to make medical-related inquiries in certain situations. They include the following: when the worker asks for a reasonable accommodation; after making a job offer, but before employment begins, as long as everyone entering the same job category is asked the same questions; when 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 employees may choose whether to respond; and on the job, when there is objective evidence that an employee may be unable to do the job or may pose a safety risk because of a mental illness or condition.

• Qualifying conditions

The guidance stresses that a mental condition does not need to be permanent or severe to be “substantially limiting” and, therefore, entitled to reasonable accommodation. 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.”

• Reasonable accommodations

The EEOC lists several potential accommodations for workers 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. The agency has also published additional guidance for mental health professionals, entitled “The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work.”

The Bottom Line

The bottom-line is that employers should be mindful that mental conditions are covered under the ADA. To avoid potential liability, managers and human resources must understand what constitutes employment discrimination under the ADA and how to properly handle requests for accommodation.

Do you have any questions? Would you like to discuss the matter further? If so, please contact me, Sean Dias, at 201-806-3364.