Depression and the ADA According to the EEOC
Mental health conditions, including depression and PTSD, can trigger protection under the ADA. Employers are prohibited from discriminating against employees based upon these conditions and also must provide reasonable accommodations to employees as necessary. But what does this mean in reality?
Last week, the EEOC issued a publication addressing depression, PTSD and other mental health conditions in the workplace, specifically focused on employees’ rights under the ADA found here.
The EEOC explains that it is unlawful for an employer to discriminate against an employee because of his or her mental health condition, including firing the employee, not hiring a prospective employee or requiring the employee to take leave.
The EEOC takes the position that “an employer cannot rely on myths or stereotypes about your mental health condition when deciding whether you can perform a job or whether you pose a safety risk” and that an employer can only reject an employee for a job based on his or her condition based on objective evidence that the employee cant perform the job or that he or she would create a significant safety risk even with a reasonable accommodation.
One question employers often struggle with is what kinds of questions they can ask about an employee’s mental health. According to the EEOC, there are only four situations in which the employee can ask questions—
- When the employee has asked for a reasonable accommodation;
- After a job offer has been extended, but before employment starts—as long as everyone hired for that type of job is asked the same questions;
- When the employer is engaging in affirmative action—and the choice of whether to respond about this issue is optional; and
- If there is objective evidence that an employee is unable to perform or poses a safety risk.
The EEOC maintains that the condition does not have to be permanent or severe to be substantially limiting (and thus entitled to protection under the ADA)—and that if symptoms come and go, the important issue is how limiting they are when they are present. According to the EEOC, major depression, PTSD, bipolar disorder, schizophrenia and OCD should “easily qualify.”
The EEOC identifies some examples of possible reasonable accommodations—including modified break and work schedules, quiet office space or devices that create a quiet work environment, changes in supervisory methods, specific shift assignments, and the ability to work remotely from home.
It can be challenging for employers to make sure they are responding appropriately when mental health issues arise. After all, employers want to make sure the employee with the condition along with the rest of the workforce are safe and it can be a bit of a balancing act to figure out how to keep in line with the ADA while accomplishing this goal. Although directed toward employees, this new publication provides some helpful guidance to employers at least as to the EEOC’s take on these issues in the context of the ADA.