Employers have a responsibility to protect the rights of employees suffering from a mental health condition.
Depression, PTSD & Other Mental Health Conditions in the Workplace: Your Legal Rights” is a summary of an individual’s rights under the Americans with Disabilities Act of 1990. The document is published by the U.S. Equal Employment Opportunity Commission (EEOC). A copy of the summary can be found at www.eeoc.gov/eeoc/publications/mental_health.cfm.
According to the document’s summary, employers are obligated to guarantee an employee’s rights to:
Not be Discriminated Against or Harassed
Employers cannot discriminate against employees based on their mental health conditions. An example of discrimination would be to deny an employee a promotion because of a mental health issue. Employers also are required to address an individual’s complaints about harassment and to keep it from occurring again.
Request Reasonable Accommodations
An employee may request a reasonable accommodation to do their job any time after they are employed. These accommodations could include requests, such as a different work or break schedule, a quiet space or permission to use electronic devices.
As the employer, you can ask the employee to put the request in writing, including an explanation as to how their condition will affect their work. You also can request a letter from their health care provider.
You’re not required to provide burdensome accommodations that are expensive or difficult to arrange. However, you’re also not allowed to ask the employee to repay any of the costs of accommodation.
If an accommodation isn’t enough for the employee to do their job, they may be entitled to unpaid leave if that will help them to eventually resume their duties. An employee who is unable to perform their duties also can be assigned to a different position.
The EEOC summary also added the word “uncomfortable” when explaining that employers must provide reasonable accommodations if the employee’s condition makes certain activities “more difficult, uncomfortable, or time consuming to perform.” Many human resource experts are uncertain how to define “uncomfortable,” which could be subject to various interpretations.
Employees do not have to divulge that they have a mental health condition. At the same time, you are allowed to ask questions about employees’ mental health under the following conditions:
- When the employee asks for an accommodation
- After an employee is hired, if all employees are asked the same question
- When you are engaging in affirmative action practices for people with disabilities
- When you have evidence an employee is unable to do their job adequately or is a safety risk to themselves or others
You cannot fire an employee for having a mental health condition. However, you don’t have to keep an employee who is unable to do their job because of a medical condition or the side effects of the medicine they’re taking. And, you don’t have to hire a candidate who can’t do the job or who may be a threat.
The important thing is not to rely on stereotypes when making a hiring or firing decision. You must have objective evidence that an employee can’t perform the job or could be a threat. Objective evidence is information based on facts that can be proved by analysis, measurement and observation.
If you have questions or concerns about your EEOC responsibilities as an employer, please contact USI Northeast.