The EEOC continues to issue resource guides for employees suffering from various health conditions to let them know the job protections and benefits available to them under the Americans with Disabilities Act (ADA). But while the guides are written for workers, employers can learn a lot from them.
Earlier this year, the EEOC issued documents addressing the rights of employees with HIV to go along with a short guide on the rights of pregnant employees.
It’s latest addition to these resource documents for employees is a guide on the rights of job applicants and employees suffering from mental health conditions.
EEOC Chair Jenny R. Yang said the guidance was spurred by the influx of veterans who’ve returned from service with mental health conditions. But the guidance covers all employees with mental health conditions — not just veterans.
What employers need to know
Much like the other resource documents the EEOC has issued lately, the guidance for those with mental health conditions doesn’t break any new legal ground. But it does provide additional insight for employers on what they’re required to do when it becomes known that an employee is suffering from a mental health condition that may be affecting his or her work.
Basically, the guidance tells employers that when such an ailment becomes known, they’re required to initiate the interactive process in an attempt to determine if a reasonable accommodation can be provided to help the employee perform the essential functions of his or her job.
Three key takeaways
The biggest takeaway for employers: You can’t fire an employee simply because he or she has a mental health condition. Before any negative action can be taken against an individual with a mental health condition, the employer must first determine that the condition renders the employee either unable to perform his or her essential duties, or a safety risk — even if granted a reasonable accommodation.
The second biggest takeaway: Employers cannot rely on myths or stereotypes about mental health conditions when deciding whether a person can perform his or her job, or is a safety risk. Employers are required to use only objective evidence.
Another big takeaway: Reasonable accommodations can be altered break and work schedules, the ability to work from home, a leave of absence and/or reassignment. In other words, before taking a negative action against an employee with a mental health condition, employers must explore whether or not any of these accommodations would:
- help the employee perform his or her essential job functions, and/or
- present an undue hardship.
The interactive process dos and don’ts
The beauty of the guide for those with mental health disabilities, as well as the guides for HIV-positive and pregnant employees, is they help flesh out what the interactive process should look like.
And in doing so the guides reveal a lot about what employers can and can’t do when employees request an accommodation.
- You can ask an employee to submit a letter from his or her doctor documenting that he/she has a medical condition and explaining why he/she needs an accommodation.
- You cannot ask a doctor to disclose a patient’s detailed medical info without first obtaining a release from the employee/patient.
- You can ask an employee’s doctor if certain accommodations would be effective and/or would meet the employee’s needs.
- You can’t require a doctor to provide you with a specific diagnosis. It’s legally sufficient if the doctor only describes the condition in general terms, like “immune disorder.”
- You do not have to accept lesser-quality work from a disabled employee, assuming you sought a reasonable accommodation.
- Before terminating a worker due to a disability, you must have “objective evidence” that the person’s unable to perform his/her duties or would pose a significant safety risk, even with an accommodation.
- You can ask an employee’s doctor if the employee would be a safety risk, even with an accommodation.
- You can’t charge employees for the cost of any accommodations you provide.