Accommodating an employee’s mental health condition often challenges employers. The EEOC recently offered guidance for employees who have a mental health condition under the Americans with Disabilities Act of 1990 (“ADA”). Employers take note. The EEOC (and private plaintiff’s counsel) may hold employers to its guidance.
The EEOC guidance builds from the basics. It’s illegal to discriminate against an employee with a mental health condition. But an employer need not hire or continue to employ someone who can’t do the “essential functions” of the job even with a reasonable accommodation, or who poses a “direct threat” to someone’s safety.
Watch this, though. The EEOC then says that “myths or stereotypes” about a mental health condition aren’t good enough to decide if the employee can do the job or poses a direct threat. An employer must have “objective evidence” specific to the individual. In English: Don’t hit up something like WebMD to make the call – get the actual facts about the employee’s condition.
The guidance also explains that employees have a right to keep their medical condition private, so an employer normally can’t ask about it. Yet, employer can ask about the employee’s medical condition when:
- The employee has asked for a reasonable accommodation;
- The employer has already offered the applicant a job, but before employment begins, if the employer asks the same questions of everyone entering the same job category;
- The employer wants the information to take affirmative action, in which case the individual may choose not to respond; and
- The employer has objective evidence that an employee may be unable to do the job or poses a safety risk.
Working with any medical condition – especially a mental condition – can be tricky. The employer must spend the time getting to know the specific employee, but can’t bring up the topic without a legal reason to go there. Tread carefully.