EEOC Guidance on Mental Health Disabilities: A Gift for Employers

EEOC Guidance on Mental Health Disabilities: A Gift for Employers

The EEOC recently issued a resource document intended to raise awareness about the rights of employees with mental health conditions under the Americans with Disabilities Act (ADA).   Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights explains that job applicants and employees with mental health conditions are protected from employment discrimination and harassment based on their conditions. The document also answers questions about how to request an accommodation, describes some types of accommodations, and addresses restrictions on employer access to medical information, confidentiality, and the role of the EEOC in enforcing the rights of people with disabilities.   The EEOC is focusing an increasing amount of attention on mental health disabilities in the workplace.

Among occupational health researchers, there also has been increasing discussion about the degree to which anxiety disorders and work-related anxiety disorders are interrelated with the “toxic workplace”.  While toxic work practices and environments are not unlawful, they can have a significant mental health impact on employees and, in turn, an economic impact on the employer.   The Job Accommodation Network (JAN) reports that approximately 61.5 million Americans, one in four adults, experience mental health impairment in a given year (JAN citing National Alliance on Mental Illness, 2013). One in seventeen individuals lives with serious mental health impairment, such as schizophrenia, major depression, or bipolar disorder (JAN citing National Institute of Mental Health, 2013).   Depression and other mental health conditions have a significant association with impaired work performance, and can have a significant economic impact on the workplace.  The economic impact on the workplace includes both direct and indirect costs such as lost work days, decreased productivity, impact on co-worker performance, increased insurance costs, increased workplace injuries, paid disability benefits including paid sick time, and costs of hiring and training replacement workers (Goldberg 1642).  Indirect costs are associated with loss productivity, accidents, conflict, aggression, turn over, low morale and potential suicide. (Bender 76; Haslam 213).  Direct costs include lost time from work due to absenteeism and disability claims.  On average, depression and related mental health impairments represent 1.9% of payroll costs   (Bender 77)   Industry rule of thumb is that for every $1 of disability claim paid out, there is an associated cost of $1.50 for workplace disruption (Goldberg 1642).

The EEOC’s December, 2016 press release announcing the publication of the resource document states that charges of discrimination based on mental health conditions are on the rise. During fiscal year 2016, the EEOC’s preliminary data shows that EEOC resolved almost 5,000 charges of discrimination based on mental health conditions, obtaining approximately $20 million for individuals with mental health conditions who were unlawfully denied employment and reasonable accommodations.

The source document, in a question and answer format, suggests some reasonable accommodations which may allow a person with a mental health condition to perform their essential job duties.  Examples include altered break and work schedules (e.g., scheduling work around therapy appointments), quiet office space or devices that create a quiet work environment, changes in supervisory methods (e.g., written instructions from a supervisor who usually does not provide them), specific shift assignments, and permission to work from home. The document includes a link to another EEOC Fact Sheet, The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work, and recommends that an employee provide a copy to their treating physician when requesting medical support for a reasonable accommodation.

The Fact Sheet answers many questions which nag health care providers when stepping out of their comfort zone from medical care into the legal world of the ADA.   The Fact Sheet, for example, states that the employer may contact the health care provider to ask for clarification about the accommodation and condition and may provide additional information for consideration.  For example, the employer may advise the health care professional about the particular job functions and ask whether the requested accommodation would help the employee perform the essential job function safely without direct threat to himself or others.  The fact sheet notes, however, that that ADA does not alter a health provider’s ethical or legal obligations about confidential health information, and advises that the provider obtain authorization to release such information to the employer. The Fact Sheet advises health care professionals not to “simply provide your client’s medical records.” Importantly, it outlines the information which would be helpful in preparing a letter in support of a patient’s reasonable accommodation request  including the nature of the patient’s condition,  functional limitations in the absence of treatment, the need for reasonable accommodation, and suggested accommodations.

The recent EEOC publications for the employee and his/her treating health care professionals are helpful for employers because they clearly support the right of the employer to obtain necessary information about the condition, guide healthcare providers in focusing on performance of essential job functions, and support the employee’s obligation to engage in an interactive dialogue about reasonable accommodations that would allow the employee to perform his/her essential job duties safely without direct threat to the employee or others in the workplace.   As the number of discrimination charges continue to rise and with an increasing number of Americans taking anti-depressants for various stress and anxiety related conditions, employers will increasingly need to engage in this interactive dialogue about mental health conditions under the ADA.

Due to the significant economic impact of mental health related symptoms on the workplace, employers should be pro-active in creating a workplace culture which mitigates the likelihood of depression and other anxiety disorders for all employees, including employees who otherwise would have no anxiety related disorder.  Many employers today are implementing “Wellness Programs” for the workplace.   Organizationally, as a best practice, employers can and should implement measures to reduce or eliminate common workplace stressors. Good workplace policies and good management can mitigate or eliminate common stressors linked to and/or triggering depression, including improving job satisfaction, eliminating bullying, and improving co-worker collegiality to reduce both direct and indirect costs of mental health stressors in the workplace.

If you have questions or if you need assistance in designing lawful wellness programs, evaluating reasonable accommodations, and developing workplace policies and best practices to improve the culture, please contact any member of the firm.

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