More Mental Health Guidance from the EEOC

Human Resources
by Guest Columnist

By Joan Farrell, JD

In yesterday’s Advisor, BLR® Senior Legal Editor Joan Farrell, JD, explained some of the new guidance on mental health conditions released by the Equal Employment Opportunity Commission (EEOC). Today, Farrell has additional details on the matter.

The EEOC has released an informal guidance for advising employees of their legal rights in the workplace with regard to depression, post-traumatic stress disorder (PTSD), and other mental health conditions. Although the guidance is geared toward employees, it provides insight for employers as to EEOC’s position on protections provided for employees under the Americans with Disabilities Act (ADA).

The guidance is provided in a question-and-answer format and covers the following areas (see yesterday’s Advisor for additional areas):

“Substantially limiting” condition. The guidance points out that a condition does not need to be permanent or severe to be substantially limiting under the ADA. A condition that makes activities more difficult, uncomfortable, or time-consuming to perform (when compared to the general population) may be substantially limiting, according to the EEOC.

And, even if symptoms come and go, the guidance notes that “what matters is how limiting they would be when the symptoms are present.” It also notes that mental health conditions like major depressions, PTSD, bipolar disorder, and obsessive compulsive disorder “should easily qualify.”

In this section, the guidance is touching what the EEOC details in its regulations; that is, an employer should not conduct an extensive analysis of whether a condition qualifies as a disability but should instead focus on complying with ADA’s antidiscrimination and reasonable accommodation requirements.

Reasonable accommodation. The guidance advises employees that they may ask for a reasonable accommodation at any time but that it’s generally better to ask before any workplace problems occur because employers are not required to excuse poor job performance—even if it’s caused by a medical condition or the side effects of medication.

The guidance notes that an employer may ask an employee to put an accommodation request in writing and may ask for documentation from the employee’s healthcare provider about the condition and the need for accommodation. The EEOC suggests that employees bring to their medical appointment a copy of the EEOC publication The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation.

The guidance adds that an unpaid leave may be a reasonable accommodation if the leave will help the employee get to a point where he or she can perform a job’s essential functions. And if an employee is permanently unable to do his or her regular job, the guidance explains that the employee can request reassignment to another job if one is available.

Harassment. The EEOC advises employees to tell their employer about any harassment if they want the employer to stop the problem. The guidance recommends that employees follow the employer’s reporting procedures and explains an employer’s legal obligation to take action to prevent future harassment.

The guidance provides a simple, straightforward explanation of an employee’s rights under the ADA. It can help employers understand how the EEOC may view an employer’s obligations and what the agency expects—and permits—employers to do.

The guidance is available online at EEOC’s website.

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