EEOC Guide on Mental Health Accommodations is Broad and Troubling

The EEOC has just issued a “resource document” entitled Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.

While seeking to explain the rights of workers with mental health conditions under the Americans with Disabilities Act (ADA), this document offers some unsettling glimpses into the EEOC’s overly expansive view of an employer’s obligation to make workplace accommodations for employees’ medical conditions.

The document is written in a question-and-answer format featuring the following questions:

Is my employer allowed to fire me because I have a mental health condition?  

Obviously, the answer is “no”  but the EEOC takes it a step further by reminding us not to rely on “myths and stereotypes” in deciding to fire someone. Instead, there must be “objective evidence” that the employee cannot do the job or poses a health or safety risk, even with reasonable accommodation.  The amount of evidence required is unclear but be forewarned – the EEOC typically views this sort of evidence very skeptically, especially where it is anecdotal or not documented.

Am I allowed to keep my condition private?

The document states that while medical conditions are generally confidential, employers may inquire about those conditions in four different circumstances:

(1) when an individual requests an accommodation;

(2) for pre-placement medical exams under the conditions established by the ADA;

(3) for purposes of affirmative action plans targeting persons with disabilities; and

(4) when there is “objective evidence” that the employee is unable perform the job or poses a safety risk in the workplace because of the medical condition.

What if my mental health condition could affect my job performance?

This is where it gets interesting.  Instead of citing language from the ADA or its regulations, EEOC dumbs it down to say only that there might be a right to accommodation if it “would help you do your job.” A reasonable accommodation is then described merely as “some type of change in the way things are normally done at work.”

Curiously, there is no acknowledgment that the ADA requires accommodation only if it permits the individual to perform the essential functions of the job.  Hopefully, this is attributable to mere oversight or overly aggressive editing, and is not a signal that the essential function requirement no longer applies.   Otherwise, consider the case of an employee who is supposed to produce 50 units per hour but can only produce 20 due to a mental health condition.  If there was some sort of change that helped the employee produce 30 units per hour, the absence of an essential functions analysis would mean that this change would be considered a reasonable accommodation to which the employee is entitled because it would “help him do his job.”  Surely this is not what the EEOC intended.

It also must be noted that this portion of the resource document fails to mention that an accommodation need not be offered if it poses an undue hardship.   This seems to minimalize this critical  defense to an accommodation demand and offers an optimistic but legally unsupported assessment of an employee’s right to obtain a specific accommodation.  Fortunately, the concept of undue hardship is addressed later in the document, although not specifically by name.  In fact, the phrase “undue hardship” never appears anywhere in the entire document.

How can I get a reasonable accommodation?

This is pretty straightforward – we are told that an employee must ask for an accommodation in order to get one. In fact, the EEOC actually does employers a favor here by stating “[b]ecause an employer does not have to excuse poor job performance, even if it was caused by a medical condition or the side effects of medication, it is generally better to get a reasonable accommodation before any problems occur or become worse.”  This is helpful since employees often believe that they may not be held accountable for poor performance if a medical condition is the underlying cause.

What will happen after I ask for a reasonable accommodation?

This is another helpful inquiry since this is where the EEOC verifies the employer’s right to seek written verification of the medical condition and the need for an accommodation. Interestingly, the EEOC then provides a link to another document entitled The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work, which explains to health care professionals the legal basis for the employee’s visit and what information employer’s might require to determine whether and to what extent they can accommodate the employee.  The EEOC advises employees to give this document to their health care provider when they seek an accommodation.

This is also where the EEOC finally gets around to the possibility that an employer need not grant the accommodation if it poses an undue hardship.  Even then, they refuse to use the term, stating instead that an accommodation backed by sufficient medical documentation must be granted in the absence of “significant difficulty or expense.”  In other words, an undue hardship.

What if there’s no way I can do my regular job, even with an accommodation?

Finally, the EEOC addresses the possibility that a job accommodation may not be possible if the employee still can not perform the essential functions of the job.  They immediately shift gears to say that the employee may then be entitled to a leave of absence if the leave will “help you get to a point where you can perform those functions.” They offer no guidance, however, on how long such a leave might last or what progress must be made toward return to work in order to show that continuing the leave is reasonable.

The final two questions address what to do if the employee feels harassed or discriminated against, and the answers mainly advise the employee to follow the company’s reporting procedures and perhaps contact the EEOC.   No surprises there.

Bottom Line

Remember that this is only an informal guidance and does not have the force of law.  Nevertheless, it offers very important clues about how the EEOC will approach a charge of unlawful failure to offer a reasonable accommodation and it is not a pretty picture.

When an employee seeks an accommodation, employers should carefully and meaningfully engage in the interactive process to seek possible accommodations.  Be creative and inclusive, and do not just speculate on the cost or difficulty of an accommodation.  If you think that an accommodation may be too expensive, cost it out in very precise terms and document the analysis. If a proposed change appears too difficult, examine the reasons why and document those as well.

The EEOC seems ready to pick a fight over accommodation decisions involving mental health conditions.  They are more likely to do so with an employer who has not done their homework.   Don’t be that employer.