In continuation of its series of “resource” documents which provide guidance to individuals with medical conditions or work restrictions, on December 12, 2016, the EEOC issued a “resource” document titled “Depression, PTSD, and Other Mental Health Conditions in the Workplace: Your Legal Rights” which is intended to provide guidance on workplace rights for individuals with mental health conditions under the Americans with Disabilities Act (“ADA”).
In a news release regarding the document, the EEOC stated that discrimination charges based on mental health conditions are rising, and that the agency resolved approximately 5,000 charges relating to mental health conditions in 2016. https://www.eeoc.gov//eeoc/newsroom/release/12-12-16a.cfm. As a result, the EEOC determined that a user-friendly explanation of the rights of individuals with mental health conditions was warranted. The document highlights the fact that individuals who are suffering from depression, post-traumatic stress disorder or other mental health conditions are protected, under the ADA, against discrimination and harassment at work because of their condition. Furthermore, these individuals have a right to request reasonable accommodations that can assist them in performing their job. The EEOC even provides a related resource for the individual’s mental health care provider titled “Mental Health Provider’s Role in Request for Reasonable Accommodation at Work” which is intended to guide mental health care providers in how to provide supporting documentation for a reasonable accommodation to an employer.
The resource document for the individual is laid out in a question and answer format that outlines the protections and rights of individuals with mental health issues. For example, the document provides information on when an employer can fire the employee because of a mental health condition, i.e., when the employee poses a direct threat to safety, the general limits on the employer’s ability to ask medical questions, and how to ask for a reasonable accommodation.
The resource document also provides guidance on when a request for a reasonable accommodation under the ADA is appropriate. However, one sentence that may give employers and employment counsel heartburn is the EEOC’s statement qualifying “substantially limiting.” The EEOC states that a condition may qualify by “for example, making activities more difficult, uncomfortable, or time-consuming to perform…” This “uncomfortable” language is new and is not included in the regulations. Only time will tell whether employees latch on to it in their reasonable accommodation requests.