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EEOC to Employers: Remember Mental Health Conditions are Disabilities Too

Although a new administration prepares to take over in Washington, the Equal Employment Opportunity Commission (EEOC) continues to issue publications intended to better inform workers about their rights under federal anti-discrimination laws. After addressing protections for both HIV-positive and pregnant workers earlier this year, the EEOC’s latest publication – issued on Dec. 13, 2016 – focuses on mental health conditions and their coverage under the Americans with Disabilities Act (ADA).

The idea that mental health conditions can qualify as disabilities under the ADA is nothing new, and the EEOC’s latest guidance does not break fresh ground with respect to how the EEOC has addressed mental health issues in the past. The ADA has required (and continues to require) employers to address and accommodate “substantially limiting” mental health conditions in the same manner as physical disabilities. In particular, this means that, with limited exceptions, employers may not ask questions about an employee’s mental health once an employee has started employment unless (1) the employee has asked for a reasonable accommodation or (2) the employer has objective evidence that the employee cannot perform his/her job or poses as safety risk due to his/her condition.

Where the EEOC’s new guidance does provide insight is in the specific examples given by the EEOC of mental health conditions and potential accommodations. In a companion press release, the EEOC noted that charges of discrimination based on mental health conditions are on the rise, specifically mentioning “veterans who have returned home with service-connected disabilities.” Indeed, the title of the EEOC’s new guidance specifically references both depression and post-traumatic stress disorder (PTSD) as mental health conditions for which workers have rights under the ADA. The focus on veterans suggests that, going forward, the EEOC may be seeking out claims where military service-related disabilities, both physical and mental, are involved.

Employers should be wary that some statements in the EEOC’s guidance may mislead employees into mistakenly believing they are entitled to certain benefits. For example, while accommodations under the ADA must be analyzed on a case-by-case basis—taking into account the nature of the employee’s condition as well as the workplace in which he/she works—the EEOC’s guidance provides specific examples of “possible” accommodations, which 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.

In many cases, these accommodations will not be reasonable for a particular employee or business. The EEOC’s guidance will likely place employers in a difficult position when an employee expects the accommodations listed in the EEOC’s guidance. Likewise, while the EEOC guidance states that certain conditions, such as, bipolar disorder, schizophrenia and obsessive compulsive disorder (OCD) “easily” qualify as disabilities, employers must still follow their standard process of requesting information from a health care provider (through the employee) to determine whether an accommodation is needed and to what extent.

Copyright © 2017 Godfrey & Kahn S.C.

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About this Author

Scott LeBlanc, Labor & Employment Attorney with Godfrey Kahn
Member

Scott LeBlanc is a member of the firm's Labor, Employment & Immigration and Health Care Practice Groups. Scott advises clients on a wide variety of labor and employment issues, including confidentiality, non-competition and non-solicitation agreements, employment discrimination, wage and hour claims, and family and medical leave administration. Scott also assists clients with drafting and enforcing employment and severance agreements. Scott's health care practice includes advising clients on compliance issues related to Medicare and Medicaid regulations, the Health Insurance...

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