On December 12, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a publication titled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights“, as a resource to explain workplace rights under the Americans with Disabilities Act of 1990 (“ADA”) for job applicants and employees with mental health conditions. The publication explains that job applicants and employees with depression, post-traumatic stress disorder, or any one of many other mental health conditions: (1) are protected under the ADA against discrimination and harassment at work because of the mental health conditions; (2) have workplace privacy rights; and (3) may have a legal right to obtain reasonable accommodations.

For employers, accommodation of mental health conditions is one of the most difficult aspects of disability and leave compliance, for several reasons. Sometimes a mental health disability is not obvious and often finding an appropriate accommodation can be challenging, especially when managers express concern about safety and co-workers complain of special treatment. But accommodation of mental health conditions is the law, and this new publication (although not binding) is a useful resource for Human Resources professionals to understand this area, especially when it comes to issues of workplace privacy.
Below is a brief summary of the workplace rights afforded under the ADA to job applicants and employees with mental health conditions.

Protections Against Discrimination and Harassment:
It is illegal for an employer to discriminate against a job applicant or employee because the individual has a mental health condition. An employer may not fire, withhold a promotion, or force an individual to take leave on the basis that the individual has a mental health condition. Nevertheless, an employer is not required to hire an applicant for a position the individual cannot perform or retain an employee in a position the employee cannot perform. If an employer believes this is the case, the employer must have objective evidence that the individual cannot perform the job duties, even with a reasonable accommodation, and the employer cannot rely on stereotypes about the particular mental health condition.

As for harassment, an employer may not harass an applicant or employee based on a disability. If harassment is occurring in the workplace based on a disability, such discrimination should be immediately reported and the employer is legally required to take action to prevent it from occurring in the future.

Workplace Privacy Rights:
Generally, a job applicant and employee can keep their mental health condition private. There are four exceptions to the general rule. An employer may ask medical questions, including questions about mental health, when:

• The job applicant or employee asks for a reasonable accommodation.
• The employer has made the job applicant an offer, but employment has not yet begun (so long as every individual entering the same job category is asked the same questions).
• The employer is engaging in affirmative action for people with disabilities (in this situation the job applicant or employee may choose whether to respond).
• An employee is on the job and there is objective evidence that the employee may be unable to do the employee’s job or that the employee may pose a safety risk due to the employee’s mental health condition.

Right to Reasonable Accommodations:
Individuals with mental health conditions often have a legal right to a reasonable accommodation to assist them in carrying-out their job duties. An employee may obtain a reasonable accommodation for any mental health conditions that would, if left untreated, substantially limit the applicant or employee’s ability to concentrate, interact with others, communicate, eat, sleep, regulate thoughts, or do any other major life activity. Reasonable accommodations include, but are not limited to, accommodations such as altered work schedules, quiet office space, changes in supervisory methods, and permission to work from home. If an employee requests a reasonable accommodation, an employer may ask that the request be put in writing and contain a description of the mental health condition and an explanation as to how it affects the employee’s work. An employer may also request that the employee obtain a letter from the employee’s health care provider documenting the mental health condition and providing that the employee needs an accommodation as a result of the condition. If the reasonable accommodation will assist an employee with a mental health condition, the employer must provide the accommodation unless it involves a significant difficulty or expense.

Conclusion:
The purpose of the EEOC publication is to increase awareness of workplace protections held by applicants and employees with mental health conditions. Although the resource document is directed towards applicants and employees, the document provides useful guidance for employers. If you have any questions regarding the workplace rights of applicants and employees with mental health conditions under the ADA, contact one of the Minnesota employment attorneys of Trepanier MacGillis Battina P.A.
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Minnesota employment attorney Craig W. Trepanier advises clients in a broad range of employment and business matters. Craig may be reached at 612.455.0502 or craig@trepanierlaw.com. Trepanier MacGillis Battina P.A. is a Minnesota employment law firm located in Minneapolis, Minnesota.