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4477
Phone: 281.880.6525
Accommodating
Employees
with Mental
Illness
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Winter weather, a lack of sunshine and even the holiday season can lead to
clinical depression that can cause workplace productivity to dip. To help
employers understand this topic, the Equal Employment Opportunity
Commission (EEOC) has provided guidelines, titled, "Depression, PTSD, and
Other Mental Health Conditions in the Workplace: Your Legal Rights.
Although most employers know that the Americans with Disabilities Act (ADA)
requires them to make a "reasonable accommodation" for workers with
physical limitations, matters can get trickier when the disability is
psychological. As with other disabilities, the ADA's protections in this area
cover hiring and firing decisions, harassment and denied promotion
opportunities. However, as the guidelines make clear, the law doesn't require
employers to "hire or keep people in jobs they cannot perform, or employ
people who pose a direct threat to safety" to themselves or others.
The EEOC goes on to say that making a determination that an employee with
a mental condition can't do the job, even with a reasonable accommodation,
must be based on "direct evidence."
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Right to Know
Because of general sensitivity to mental
health issues, it's understandable that
an employee suffering from depression,
anxiety, post traumatic stress disorder,
bipolar disorder or some other condition
might be reluctant to raise the topic
with you.
The EEOC identifies the circumstances
under which you can learn about or ask
an employee whether he or she has a
mental health condition.
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They include:
After you've hired the individual but before the employee starts work
so long as you ask the same question of all new hires,
After the employee has begun work and there's objective evidence that
the employee may be unable to perform the job or pose a safety risk.
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Key Definitions
What condition causes one's abilities to be "substantially" limited? While the
answer may be in the eye of the beholder, the EEOC says it doesn't need to be
"permanent or severe." The new guidance uses the following language to
define it: the condition "may qualify, for example, by making activities more
difficult, uncomfortable or time-consuming to perform compared to the way
most people perform them.
When the limiting condition occurs episodically, "what matters," says the
EEOC, is "how limiting [the episodes] would be when the symptoms are
present."
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What sort of job modifications might be suitable for employees suffering from
depression, anxiety, post traumatic stress disorder or other mental health
condition? Here are some examples:
Quiet office space "or devices that create a quiet work environment," for
example, a white noise machine or noise cancelling earphones,
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But as with accommodating any other form of disability, these must not
involve "significant difficulty or expense" to you, the employer. Also, if more
than one form of accommodation could help the employee function better,
you can decide which one to offer.
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Employers' Rights
Employees requesting an accommodation don't need to be automatically
granted one. The request you receive must be in writing, and explain how the
employee's condition affects his or her work. You can ask the employee to
furnish a letter from a health care provider to corroborate the employee's
assertions.
Once you're satisfied that the employee needs an accommodation, you can ask
the health care provider whether the accommodation being considered seems
appropriate to address the need. If, on the other hand, you aren't satisfied that
the accommodation request is justified, you can decline, and the ball is back in
the employee's court.
Be sure not to overlook any rights the employee might have to unpaid leave
under the Family and Medical Leave Act as well as any state or local laws.
Litigation may or may not follow. If you're not confident in your ability to
assess the employee's rights under the law, it would be prudent to consult
with a legal expert before declining to provide a requested accommodation.
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E-mail : info@hrp.net
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