EEOC Heightens Focus on Mental Health and the Workplace with New Employee Q&A

mental-health-brain-shutterstockAt Matrix Absence Management, we are seeing an increase in workplace accommodation requests due to mental health impairments, including modified work schedules and work-from-home arrangements.   The U.S. Equal Employment Opportunity Commission has long focused on mental health impairments in the workplace and is noticing increases in mental health issues as well.  On December 12, 2016, the EEOC stepped up its game with a new employee-centered resource document, Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.  The document is brief – only 2 pages – and doesn’t break any  new ground, but pulls together in Q&A format some basic ADA and mental health information that can be helpful to employees and employers alike.

It’s Just Like a Physical Impairment.  In introducing the new document, EEOC Chair 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.”  Indeed, the same basic ADA definition of a protected “disability” applies to both physical and mental impairments:  an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment.

Growing Numbers = Growing EEOC Employer Concerns.  Mental health charges constitute a significant portion of all claims filed with the EEOC and are on the rise.  During fiscal year 2016 the EEOC resolved almost 5000 charges of discrimination based on mental health conditions, obtaining approximately $20 million in settlements or judgments for the individual employees. (EEOC Press Release 12-12-2016.)  In 2015, the last full year for which final statistics are available, mental health charges constituted almost one-quarter of all EEOC ADA filings.  This table shows the distribution of charges among identified behavioral health impairments:

ada-charges
Source: ADA CHARGE DATA by IMPAIRMENTS/BASES – RECEIPTS https://www.eeoc.gov/eeoc/statistics/enforcement/ada-receipts.cfm

What the Resource Document Tells Employees – and EmployersThe resource document provides a lot of good, basic information for individuals with mental health impairments, but it also serves as a primer – and a warning – for employers.  Here are some of the nuggets that should grab employers’ attention:

Base Decisions on Objective Information, Not Myth.  It is illegal for an employer to discriminate against an applicant or employee because of a mental health impairment.  OK, that’s not news.  But many employers just don’t get it, so the EEOC goes on to say in its answer to Question 1 (emphasis in original):

An employer cannot rely on myths or stereotypes about your mental health condition when deciding whether you can perform a job or whether you pose a safety risk.

And:

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.

An Employee’s Condition is Private Information.  Employees do not have to reveal information about their mental health (or physical) condition except in four circumstances (Question 2, emphasis in original):

  • When the employee requests an accommodation;
  • After a job offer but before commencement of employment, as long as the employer asks the same questions of everyone entering the same job category (and remember, the employer’s questions still have to be “job related and consistent with business necessity”);
  • When the employer is engaging in affirmative action recruitment activities for people with disabilities; and
  • On the job, when there is objective evidence that the employee may be unable to do his/her job or may pose a safety risk because of the employee’s condition.

Even though the employer is allowed to ask for information in the above circumstances, the employee can still choose not to reveal information about an existing mental health impairment and accept the consequences of that choice (such as being refused an accommodation).

Mental Health Accommodations.  The EEOC’s resource document instructs employees on how to get an accommodation:  “Ask for one.  Tell a supervisor, HR manager, or other appropriate person that you need a change at work because of a medical condition.”

The EEOC also suggests possible accommodations that may assist an employee with a mental health impairment (Question 3):

Just a few 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.

If no reasonable accommodation will enable the employee to perform the essential functions of the position, the EEOC informs employees and reminds employers that other options include (Question 6):

  • A leave of absence if that will help the employee get to the point that he/she can perform the position’s essential functions. We addressed leave as an ADA accommodation in our blog posts here and here.
  • Reassignment to an alternate position that the employee can perform with or without a reasonable accommodation. For more on this issue, check out our prior post Reassignment – Don’t Forget the ADA “Accommodation of Last Resort”.

See the EEOC’s companion resource, “The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work.”

PINGPings for Employers

ADA training is a must. The EEOC’s advice to employees to just ask for an accommodation reminds me of the employer’s corollary:  that “supervisor, HR manager, or other appropriate person” must know how to recognize a request for accommodation and what to do next.  ADA training for supervisory and HR personnel is essential.  The cost of an ADA lawsuit lost at trial can easily exceed $500,000.  Training that can help prevent such a case costs a small fraction of that amount. What’s more:

  • Interactive Process. Always, always, always engage in the interactive process once an employee has made a request for an accommodation.  The process can include many constituents including the employee, the manager, HR, the medical provider, a family member, and others.  Toss around accommodation ideas, assess effectiveness, and think about how it will work out in the workplace – all of these are fair game for discussion and may lead to some creative win-win solutions.
  • Get that objective evidence required by the EEOC. As the employer you are not expected to make a decision without sufficient supporting information, including medical information about the employee’s impairment, its limitations, and possible reasonable accommodations.

Matrix can help!  At Matrix Absence Management we see requests for accommodations due to mental health impairments daily.  Matrix’s ADA Advantage accommodation management system and our dedicated ADA accommodation team help employers maneuver through the compliance process.  We will initiate an ADA claim for your employee, conduct the intake, obtain and assess appropriate medical information, manage the interactive process, assist in identifying reasonable accommodations, create and maintain appropriate documentation, and more.  Contact Matrix at ping@matrixcos.com to learn more about these services.

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