EEOC Issues New Guidance Regarding Employees with Depression, PTSD and Other Mental Health Conditions in the Workplace
The EEOC has recently issued a new publication concerning an employee’s rights in the workplace if they suffer from depression, PTSD or any other mental health condition. The Guidance is provided in a new worksheet which answers frequently asked questions by employees with a mental health condition. The Guidance provides as follows:
- Is my employer allowed to fire me because I have a mental health condition?
Answer: No. It is illegal for an employer to discriminate against you simply because you have a mental health condition. This includes firing you, rejecting you, rejecting you for a job or promotion, or forcing you to take leave.
An employer does not have to hire or keep people in jobs they cannot perform or employ people who pose a “direct threat” to safety. An employer cannot rely on myths or stereotype about your mental health condition in deciding whether you can perform a job or whether you pose a safety risk. Before an employer can reject you for a job based on your condition, it must have objective evidence that you can’t perform your job duties or that you would create a significant safety risk even with a reasonable accommodation.
- Am I allowed to keep my condition private?
Answer: In most situations you can keep your condition private. Employers are only allowed to ask medical questions (including questions about mental health) in four situations:
When you ask for reasonable accommodation.
After employer has made you a job offer, but before the employment begins, as long as everyone entering the same job category is asked the same questions.
When it is engaging in affirmative action for people with disabilities (such as an employer tracking the disability status of its applicant pool in order to assess such recruitment and hiring efforts or a public sector employer considering whether special hiring rules may apply), in which case you may choose whether to respond and that on the job, when there is objective evidence that you may be unable to do your job or that you pose a safety risk because of your condition.
- What if my mental health condition would affect my job performance?
Answer: You have a legal right to a reasonable accommodation that would help you do your job. A reasonable accommodation is some type of change in the way things are normally done at work. Reasonable accommodations would include altered break and work schedules, quiet office space or devices that create a quiet work environment, changes in supervisory methods, specific shift assignments and permission to work from home.
- How can I get a reasonable accommodation?
Answer: Ask for one. Tell a supervisor, HR manager or other appropriate person that you need to change at work because of a medical condition. You may ask for an accommodation at any time because an employer does not have to excuse poor job performance, even if it was caused by a medical condition or the side effects of medication, it is generally better to get reasonable accommodation occur or become worse.
- What will happen after I ask for reasonable accommodation?
Answer: Your employer may ask you to put your request in writing and to generally describe your condition and how it affects your work. The employer may also ask you to submit a letter from your healthcare provider documenting that you have the mental health condition and that you need an accommodation because of it. Your employer also might ask your healthcare provider whether particular accommodation would meet your needs. If through reasonable accommodation to help you do your job, your employer must give you one less accommodation that involves significant difficulty or expense.
- What if there is no way I can do my regular job even with an accommodation?
Answer: If you cannot perform all of the essential functions of your job to normal standards and have no paid leave available, you still may be entitled to unpaid leave as a reasonable accommodation if that leave will help you get to a point where you can perform those functions. If you are permanently unable to do your regular job, you may ask your employer to reassign you to a job that you can do as a reasonable accommodation, if one is available.
- What if I am being harassed because of my condition?
Answer: Harassment based on a disability is not allowed under the American with Disabilities Act. You should tell your employer about any harassment if you want the employer to stop the problem. Follow your employer’s reporting procedures if there are any. If you report the harassment, your employer is legally obligated to take action to prevent it from occurring in the future.
Based on the information being provided to employers, it is critically important that you have appropriate policies in place to address employees with mental health conditions.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding EEOC Issues New Guidance Regarding Employees, or any other personal injury, please feel free to contact Employment Law Attorney Brad Gardner at 480.461.5323, log on to udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.