|The Equal Employment Opportunity Commission (EEOC) has issued guidance reminding employers that it is illegal under the Americans with Disabilities Act (ADA) and other laws to discriminate against an employee simply because he or she has a mental health condition.
This includes firing an employee, rejecting an employee for a job or promotion, and forcing an employee to take leave because of his or her “mental or psychological disorder, such as . . . emotional or mental illness.” Examples of “mental or psychological disorders” include major depression, bipolar disorder, anxiety disorders, schizophrenia, and personality disorders.
The guidance also addresses an individual’s right to privacy, instructing that an employee may keep his or her condition private except in the following four situations:
· When an employee asks for a reasonable accommodation;
· After an employer has made an applicant a job offer, but before employment begins, so long as everyone entering the same job category is asked the same questions;
· For affirmative action purposes for people with disabilities, in which case the individual may choose not to respond; and
· On the job, when there is objective evidence that an employee may be unable to do the job or that the individual poses a safety risk because of his or her condition.
The EEOC notes, however, that even if an employee is required to disclose his or her medical condition under one of the situations above, the individual need not provide the specific diagnosis. To the contrary, the EEOC explains that, in most situations, it is sufficient to describe the condition generally (e.g., anxiety disorder) and, if requested, submit documentation from a medical provider to that effect.
In discussing accommodations under the ADA, the EEOC explains that an individual is entitled to a reasonable accommodation for any mental health condition that, if left untreated, would “substantially limit” the employee’s ability to do any “major life activity” (i.e. concentrate, interact with others, eat, sleep, etc.). Examples of reasonable accommodations include altered break and work schedules, quiet office spaces, changes in supervisory methods (e.g., requiring written instructions from a supervisor who does not normally provide them), and permission to work from home. In order to satisfy the “substantially limiting” requirement, an individual’s condition need not be permanent or severe, but only needs to make the individual’s activities more difficult, uncomfortable, or time-consuming to perform compared to others. If an individual’s symptoms are sporadic, what matters is how debilitating the symptoms are when they are present.
If, even with an accommodation, the employee cannot do his or her regular job, the employee may be entitled to paid or unpaid leave if such leave would get the individual to a point where he or she could perform the functions of the job. In addition, if the employee is qualified to perform another vacant job, the employee may request to be reassigned to that position.
Notwithstanding this prohibition against discrimination, the EEOC notes that an employer does not have to hire or continue to employ individuals if the employer has objective evidence that the individual cannot perform his or her job, or is a “direct threat” to the safety of themselves or others, even with a reasonable accommodation. An employer should arrive at this determination, however, only after it has engaged in an interactive dialogue with the employee regarding his or her mental health condition, its limitations, and any requests for accommodations and reviewed the information provided by the employee’s medical provider.
The guidance also addresses harassment based on an employee’s mental health condition, explaining that if such harassment occurs, the employee should alert his or her employer in accordance with the employer’s normal reporting procedures.
Ballard Spahr’s Labor and Employment Group routinely assists employers in ensuring compliance with the ADA and other federal, state, and local statutes and regulations. In addition, as federal health care reform effort has gained steam, we established the Health Care Reform Initiative to monitor and analyze developments in health care reform legislation, including those related to wellness programs. Through tracking legislative changes and court decisions, our attorneys are assisting health care entities and employers in understanding the relevant impact of these changes and decisions, and how to plan for the future. For more information, please visit the Health Care Reform Dashboard, our online resource center for news and analysis on these and more recent developments.