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On December 12, 2016, the United States Equal Employment Opportunity Commission (EEOC) published a new Resource on the Rights of Job Applicants and Employees with Mental Conditions under the Americans with Disabilities Act (ADA).

The publication focuses on three legal rights employees and employers should be aware of for mental health disabilities under the ADA; protection from discrimination and harassment, privacy rights, and reasonable accommodations. Examples of mental health conditions covered by the ADA include major depression, post-traumatic stress disorder (PTSD), bipolar disorder, schizophrenia, and obsessive compulsive disorder (OCD).

Employers should be aware that they are only allowed to ask mental health questions when:

  • - The employee asks for a reasonable accommodation,
  • - So long as everyone in the same job category is asked the same questions an employer may ask questions after the job offer is made but before employment begins,
  • - When engaging in affirmative action for people with disabilities, or
  • - On the job where there has been objective evidence that the employee may be unable to do his or her job or poses a safety risk because of the mental health condition.

Like other disabilities protected under the ADA, an employer is not obligated to hire or keep employees with mental conditions who are unable to perform their jobs or who pose a significant risk of substantial harm to others unless the employee asked for a reasonable accommodation and was not granted one. An employer cannot rely on stereotypes of a mental health condition in deciding whether an employee may pose a safety risk to others. The employer must have objective evidence that the employee cannot perform his or her job duties even without a reasonable accommodation before the employee can be let go or rejected for a position based on his or her mental health condition.

Employees can be granted a reasonable accommodation for any mental health condition that would, if left untreated, make activities more difficult, uncomfortable, or time-consuming to perform. Employers must grant employees with a mental health disability a reasonable accommodation unless doing so would involve significant difficulty or expense. Employers are prohibited from firing or refusing to promote or hire someone because they asked for a reasonable accommodation or charging the employee for the cost of the reasonable accommodation. Examples of reasonable accommodations for a mental health disability include altered break and work schedules for doctor or therapy appointments, quiet office space or devices that create a quiet work environment, changes in supervisory methods like written instructions instead of verbal, specific shift assignments, and permission to work from home.

If an employee is unable to perform the essential functions of the job and no paid leave is available, the employee may be entitled to unpaid leave as a reasonable accommodation until he or she is able to perform the job functions. If an employee is permanently unable to perform his or her regular job, he or she may ask to be reassigned to a job that can be performed as a reasonable accommodation, if such a job is available.

The Resource Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights was published by the EEOC on December 12, 2016. If you have any questions about this or any other employment-related issue, please contact Joseph F. Spitzzeri at 312-984-0683 or Amber N. Lukowicz at 312-984-6656.