EEOC Issues Guidance on Mental Health Conditions in the Workplace

On December 12, 2016, the Equal Employment Opportunity Commission (EEOC) published a resource document titled, “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights,” which summarizes the rights of individuals with mental health conditions under the Americans with Disabilities Act of 1990 (ADA).  The resource document, drafted in a basic Q&A format, addresses workers' rights to protection against discrimination and harassment because of mental health conditions, privacy regarding mental health information, and reasonable accommodation in the performance of job functions. 

The resource document provides guidance regarding an employer’s obligation not to discriminate against an individual on the basis of their mental health condition, and the employer’s right to not hire or retain an employee if the employee cannot perform the essential functions of the job or if the employee poses a “direct threat” to safety (i.e., a “significant risk of substantial harm to self or others”).  Importantly, the EEOC warns against the reliance on “myths or stereotypes” about mental health conditions when making employment decisions and advises employers to collect objective evidence of an employee’s inability to perform essential job functions or any direct threat to safety before making an employment decision.

The resource document also provides details regarding the EEOC’s position with regard to an employee’s right to keep their mental health condition(s) private.  The guidance asserts that employers cannot ask medical questions, including ones about mental health conditions, unless one of following scenarios applies: 

  • The employee requests a reasonable accommodation.
  • After the employee receives a job offer, but before employment begins (so long as this practice is used for all applicants in the same job category).
  • The employer is engaging in affirmative action for individuals with disabilities (in which case a response is optional).
  • There exists objective evidence that an employee may be unable to perform their essential job functions or may pose a safety risk to themselves or others.

With regard to an employee’s right to seek a reasonable accommodation, the EEOC explains that employees may be entitled to a reasonable accommodation when their mental health condition, if left untreated, would “substantially limit” a “major life activity.”  While the definition of “substantially limit” is not made entirely clear, the resource document indicates that the EEOC intends to adopt a very liberal interpretation of the phrase.  Additionally, the resource document provides various examples of accommodations the EEOC considers “reasonable.”  Furthermore, the EEOC published a companion document titled, “The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work,” which provides mental health providers with information for understanding the documentation necessary for submitting reasonable accommodation requests to an employer.

In its associated news release, the EEOC indicated the resource document was prompted by a need to educate job applicants and employees of their rights after the EEOC observed a recent rise in discrimination charges related to mental health conditions.  Based on preliminary data, the EEOC estimates that it resolved approximately 5,000 charges related to mental health conditions during fiscal year 2016.  Thus, it is important for employers to understand the EEOC’s interpretation of the ADA with regard to mental health conditions in the workplace, as well as the potential role of other laws related to employee accommodations, such as the Family and Medical Leave Act of 1993.  Understanding the EEOC’s position on this topic can help employers manage applicants and employees with mental health issues, as well as respond to administrative claims alleging violations of mental health rights.  

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.