EEOC Issues Guidance on Mental Health Conditions in the Workplace

Entitled Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights, the document asks and answers eight questions about employee rights and employer obligations under the Americans With Disabilities Act when it comes to mental health conditions in the workplace. Importantly, one of the questions deals with the confidentiality of medical information about employees:

2. Am I allowed to keep my condition private?
In most situations, you can keep your condition private. An employer is only allowed to ask medical questions (including questions about mental health) in four situations:

• When you ask for a reasonable accommodation (see Question 3).

• After it has made you a job offer, but before employment begins, as long as everyone entering the same job category is asked the same questions.

• When it is engaging in affirmative action for people with disabilities (such as an employer tracking the disability status of its applicant pool in order to assess its recruitment and hiring efforts, or a public sector employer considering whether special hiring rules may apply), in which case you may choose whether to respond.

• On the job, when there is objective evidence that you may be unable to do your job or that you may pose a safety risk because of your condition.

You also may need to discuss your condition to establish eligibility for benefits under other laws, such as the FMLA. If you do talk about your condition, the employer cannot discriminate against you (see Question 5), and it must keep the information confidential, even from co-workers. (If you wish to discuss your condition with coworkers, you may choose to do so.)

According to the EEOC, during fiscal year 2016, the agency resolved almost 5,000 charges of discrimination based on mental health conditions, obtaining approximately $20 million for individuals who were denied employment and/or reasonable accommodations.

Earlier this year, the EEOC published resource documents addressing the employment rights of individuals with HIV infection and individuals who are pregnant. The new publication’s companion document, The Mental Health Provider's Role in a Client's Request for a Reasonable Accommodation at Work, can be accessed here.