By: Melanie M. Dunajeski, Drewry Simmons Vornhem, LLP
The EEOC issued a new “resource document” Monday, December 12, 2016: “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights”. This short document seeks to explain to employees the “important protections” they have under the Americans with Disabilities Act (ADA). The document answers a series of eight questions such as “[i]s my employer allowed to fire me because I have a mental health condition?”, “[w]hat if my mental health condition could affect my job performance?”, and [h]ow can I get a reasonable accommodation?” This is a quick read, meant as a resource for employees, and conveys a considerable amount of information for an employee. Read it on the EEOC website at https://www.eeoc.gov/eeoc/publications/mental_health.cfm. Perhaps the biggest issues facing an employer are the issues of whether the employee can perform the essential functions of his job (with or without a reasonable accommodation), and if an accommodation is requested, what are the respective rights and obligations of the employee and the employer? The EEOC document lists as examples of possible accommodations for mental health conditions “altered break and work schedules (to accommodate 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.” Mental health conditions have always been notoriously hard to accommodate in a way that makes sense for both the employee and the employer. Accommodations of the type listed above could certainly be appropriate in specific cases, but a quick read of the list also shows that many of these types of accommodations also appear to give the employee more comfortable or favorable working conditions, or even in the example of change of supervisory methods, to allow an employee who is simply difficult (as opposed to suffering from a mental health condition) to try to dictate the very nature of the employment relationship. It is important for an employer to take any employee request for accommodation seriously: ask the employee to put their request in writing, describing the condition and how it affects their ability to do their work. Obtain the documentation from the employee’s healthcare provider, that they have a mental health condition and need an accommodation because of that condition. The accommodative process is not an employee telling an employer what they want and an employer being obligated to provide it at the risk of violating the ADA. If there is more than one way to accommodate the employee, the employer can choose the method. If an accommodation is too expensive or otherwise poses an undue hardship on the employer, the employer can examine other possible means to accommodate the employee, such as reassignment to a vacant position. With mental health conditions, leave may be an appropriate accommodation—and the ADA may require an employer to offer additional leave when all other sources of leave have been exhausted. The difficult task is to provide reasonable accommodations when necessary, and in a legally responsible manner. In any event, this is an analysis that should rarely be undertaken without consulting your employment law counsel.