Employment Law Update

The EEOC has issued a new "resource document"  entitled "Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights."  In a press release issued with the guidance, the EEOC noted that charges of discrimination under the Americans With Disabilities Act ("ADA") based on mental health conditions are on the rise.  According to the EEOC, preliminary charge data for 2016 shows that the agency "resolved almost 5,000 charges of discrimination based on mental health conditions."  EEOC Chairperson, Jenny R. Yang, stated:

Employers, job applicants, and employees should know that mental health conditions are no different than physical health conditions under the law. In our recent outreach to veterans who have returned home with service-connected disabilities, we have seen the need to raise awareness about these issues. This resource document aims to clarify the protections that the ADA affords employees.

The EEOC states that the guidance is the latest in a series of Q&A format publications aimed at "providing individuals with medical conditions or work restrictions with user-friendly explanations of their rights, and with information that they can give to a health care provider to explain how to provide appropriate medical documentation, if required."  Other publications in the series discuss the rights of employees with HIV infection, and the rights of workers who are pregnant.

The EEOC resource document advises employees that if they have a mental condition that might affect their performance they may have a legal right to a reasonable accommodation that would help them do their job.  Examples of possible accommodations listed by the EEOC 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 instructions in writing)
• specific shift assignments
• permission to work from home

The resource document further advises employees:

You can get a reasonable accommodation for any mental health condition that would, if left untreated, "substantially limit" your ability to concentrate, interact with others, communicate, eat, sleep, care for yourself, regulate your thoughts or emotions, or do any other "major life activity." (You don't need to actually stop treatment to get the accommodation.)

Your condition does not need to be permanent or severe to be "substantially limiting."  It may qualify by, for example, making activities more difficult, uncomfortable, or time-consuming to perform compared to the way that most people perform them. If your symptoms come and go, what matters is how limiting they would be when the symptoms are present. Mental health conditions like major depression, post-traumatic stress disorder (PTSD), bipolar disorder, schizophrenia, and obsessive compulsive disorder (OCD) should easily qualify, and many others will qualify as well.

Employers need to be vigilant in making sure that supervisors and HR employees are aware of the need to be responsive and engage in the required "interactive process" under the ADA when an employee raises the impact that a mental (or other) disability may be having on the employee's ability to work.  The EEOC sets the threshold for triggering the interactive process very low.  The resource document makes clear that all an employee has to do to be considered for an accommodation is to ask for one from a supervisor, HR manager or other appropriate employer representative.  The employee need not invoke the term "accommodation" or any other special words.  All that is necessary for the employee to trigger the interactive process is for the employee to seek a change in work conditions due to a medical condition.

The EEOC notes that an employee who cannot perform all the essential functions of his/her job to "normal standards" and has no paid leave, may "still be entitled to unpaid leave as a reasonable accommodation if that leave will help get you to a point where you can perform those functions."   The resource document, however, gives no comfort to employers looking to the EEOC for further guidance on "how much is enough" when it comes to leave as an accommodation. 

The resource document also advises that that an employee who is permanently unable to perform his job may ask to be reassigned to a job that the employee can do as a reasonable accommodation, if such a position is available. 

The EEOC states that an employer may seek information supporting the employee's claimed need for an accommodation from the employee's health care provider.  To assist employees, the EEOC supplies a link to a companion document entitled "The Mental Health Provider's Role in a Client's Request for a Reasonable Accommodation at Work."  Like the employee resource document, the guidance for health care providers is presented in a Q&A format.  A number of the "answers" closely track the employee resource document on the basics of the ADA.  Other "answers" are geared specifically to the health care provider's role.  For example:

How Can I Help My Client Get a Reasonable Accommodation?

Your client may ask you to document his or her condition and its associated functional limitations, and to explain how a requested accommodation would help.  The employer, perhaps in consultation with a health care professional, will use this information to evaluate whether to provide a reasonable accommodation, and if so which one.  The person evaluating the accommodation request also may contact you to ask for clarification of what you have written, or to provide you with additional information to consider.  For example, you may be told about a particular job function and asked whether the requested accommodation would help your client to perform it, or you may be asked whether a different accommodation would be effective where, for example, the requested accommodation would be too difficult or costly for the employer to provide.

The guidance to health care providers states that employers cannot take adverse action against their patient based the information the provider supplies, unless the information shows that the employee is unable to perform the essential duties of the job even with a reasonable accommodation. 

Although the Mental Health Providers' document is essentially a "how to" guide for employees and their health care providers, it does provide employers with some guidance as well.  The document describes the type of documentation employers may seek from health care providers and may aid employers in seeking information from mental health care providers, who are often reluctant to supply more than a minimum of information concerning their patients.  Categories outlined by the EEOC include:

• A brief statement of the health care provider's qualifications and the nature and length of the provider's relationship with the employee/client.
• The general nature of the employee/client's condition, although, not necessarily the specific diagnosis.
• The employee/client's functional limitations absent treatment – although the EEOC states that it is sufficient to show the substantial limitation of just one major life activity.
• An explanation of the employee/client's need for a reasonable accommodation, including the specific problems that might be helped by the accommodation.
• The suggested accommodation(s).  The EEOC cautions providers: "Do not overstate the need for a particular accommodation, in case an alternative is necessary."

The EEOC will almost certainly face increased critical scrutiny from the incoming Trump administration.   It is unclear, however, to what extent, if at all, that scrutiny might affect this guidance.

Taken together, the two guidance documents reveal the EEOC's belief that employees have broad entitlement to accommodations for mental conditions.  Determining how to respond when an employee seeks an accommodation has become one of the most prevalent and difficult issues employers face.  The answers often are not clear, and errors in judgment can expose employers to significant liability under the ADA and similar state laws.

A version of this article was published in the Maryland State Bar Association Section of Labor and Employment Law Newsletter, Volume XXI, No. 6, Spring 2017.