Washington DC – On December 12, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance on the legal rights of employees with mental health disabilities – and employers need to review this guidance. To recap, the Americans with Disabilities Act (ADA), is applicable to employers with 15 or more employees, and prohibits employment discrimination against qualified individuals with disabilities (including those with mental impairments) in all aspects of employment, including application procedures, hiring, firing and training. Employers are required to to provide reasonable accommodation (a change in the way things are normally done) to qualified individuals with disabilities—including mental disabilities—unless to do so would cause undue hardship to the company. Employers and employees are expected to engage in interactive dialogue about the type of accommodations that are available.
What guidance does the EEOC offer to employees and applicants?
- Employees with depression, post-traumatic stress disorder (PTSD) or another mental health condition, are protected.
- An employer may only ask mental health related medical questions under limited circumstances: (1) when employee asks for reasonable accommodation; (2) After it has made an employee a job offer, but before employment begins, as long as everyone entering the same job category is asked the same questions (such as a post offer medical questionnaire); (3) when it is engaging in affirmative action for people with disabilities; and (4) when there is objective evidence that the employee is unable to perform his/her job or the employee poses a safety risk because of their condition.
What if a mental condition affects job performance? According to the EEOC Guidance, employees are entitled to ask for many types of accommodations. Examples of possible accommodations include 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.
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