Published in the Union Leader (1/1/2017)
Q: Are employees with mental health conditions protected from discrimination and harassment under the Americans with Disabilities Act in the same way as employees with physical disabilities?
A: Generally yes. The ADA defines “disability” broadly and the Federal agency that enforces the ADA, the Equal Employment Opportunity Commission, along with the courts, have considered a wide range of mental health conditions to be disabilities under the statute.
Unsurprisingly, the EEOC also takes a liberal approach regarding what accommodations an employer must afford employees with a mental health condition that qualifies as a disability. In fact, the Agency recently issued a “resource document” on the rights of job applicants and employees with mental health conditions, which affirms the breadth of its interpretation of what constitutes a reasonable accommodation. While the document is not binding law, it is a useful resource for employers and employees alike on what the Agency is likely to find permissible and the new guidance on reasonable accommodations is particularly notable.
First, the EEOC states any individual is entitled to a reasonable accommodation for “any mental health condition that would, if left untreated, ‘substantially limit’ your ability to concentrate, interact with others, communicate, eat sleep, care for yourself, regulate your thoughts or emotions, or do any other ‘major life activity,” and notes that the condition need not be permanent or severe to be “substantially limiting.” The EEOC tellingly does not qualify that statement by reminding individuals that the condition must meet the definition of disability under the ADA.
The EEOC then provides a broad and purposefully inexact definition of a reasonable accommodation, calling it “some type of change in the way things are normally done at work.” The guidance lists several common examples of accommodations, such as altered work schedules, quiet office spaces, and changes in supervisory methods, but also endorses some accommodations that courts, employers, and even employees dispute constitute an acceptable accommodation, like choice of shift assignments and permission to work from home. Adding to the uncertainty surrounding reasonable accommodations, the EEOC notes in the guidance that an employee who has been provided accommodations, but is still unable to perform the essential functions of his or her job, may be entitled to an indeterminate amount of unpaid leave, if that leave will help the employee “get to a point where [he or she] can perform those functions.”
The takeaway for employers continues to be that the EEOC has an expansive view of what constitutes a disability and what workplace accommodations employers must offer disabled employees. Employers working with individuals with mental health conditions must engage in an interactive process to find the right accommodation for these workers, and document these efforts in the worker’s personnel file.
Employers must also use extreme caution before denying a requested accommodation or taking some type of adverse action against an employee who has requested an accommodation.
Nick can be reached at [email protected].
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