New Resource Delineates ADA Protections for Applicants/Employees with Mental Health Conditions

December 19, 2016

A new resource document issued by the Equal Employment Opportunity Commission (EEOC) underscores that, under the Americans with Disabilities Act (ADA), job applicants and employees with mental health conditions are protected from employment discrimination and harassment based on their conditions and also may have a right to reasonable accommodation at work ("Guidance"). The Guidance answers questions about how a request for an accommodation should be made, types of accommodations, restrictions on employer access to medical information, and confidentiality.

Privacy. The question of privacy is addressed in the Guidance. In most situations, employees and applicants are able to keep their conditions private. Employers are only permitted to ask medical questions (including questions about mental health) in four situations:

  • When an applicant or employee asks for a reasonable accommodation.
  • After an employer has made a job offer, but before employment begins, as long as everyone entering the same job category is asked the same questions.
  • When an employer is engaging in affirmative action for people with disabilities (such as an employer tracking the disability status of its applicant pool in order to assess its recruitment and hiring efforts, or a public sector employer considering whether special hiring rules may apply), in which case applicants and employees may choose whether to respond.
  • On the job, when there is objective evidence that an employee may be unable to do his or her job or that he or she may pose a safety risk because of his or her condition.

Applicants and employees also may need to discuss their conditions to establish eligibility for benefits under other laws, such as the Family and Medical Leave Act (FMLA). When applicants and employees do talk about their conditions, employers are prohibited from discriminating against the applicant or employee and must keep the information confidential, even from coworkers.

Reasonable Accommodations. The Guidance gives several examples of common reasonable accommodations (which it describes as "a change in the way things are normally done at work that enables an individual to do a job, apply for a job, or enjoy equal access to a job's benefits and privileges"):

  • altered break and work schedules (e.g., scheduling work around medical appointments);
  • time off for treatment;
  • changes in supervisory methods (e.g., providing written instructions, or breaking tasks into smaller parts);
  • eliminating a non-essential (or marginal) job function that someone cannot perform because of a disability; and
  • telework.

SESCO recommends that clients review all applicable policy and practices to ensure compliance. For assistance, contact us at 423-764-4127 or by email at sesco@sescomgt.com