The Equal Employment Opportunity Commission (“EEOC”) received an increased number of Charges of Discrimination on the basis of mental health disabilities during the 2016 fiscal year. Due to this rise in discrimination allegations, the EEOC issued a “Frequently Asked Questions” document regarding an employee’s rights in the workplace when the employee has a mental health condition. As with physical impairments, an employer is prohibited from discriminating against or harassing an employee with a mental health condition. However, an employer does not have to retain employees who cannot perform the essential functions of their positions, or who pose a “direct threat” to the safety of others in the workplace. Keep in mind that any evidence used in determining an employee is a “direct threat” must be objective, and not based upon stereotypes regarding a mental health condition. Further, the threat must exist even with the provision of reasonable accommodations to the employee.

The EEOC’s FAQ states that an employee may maintain privacy regarding her condition, but that an employer may ask medical questions in four situations:

  1. When the employee asks for a reasonable accommodation;
  1. When the employer makes a job offer, but before employment begins, asks medical questions that are job-related and consistent with business necessity of all employees in the same job category;
  1. When the employer is engaging in affirmative action for individuals with disabilities (the employee may choose to respond); and
  1. On the job, when there is objective evidence that the employee may be unable to do her job or that the employee poses a safety risk because of her condition.

As an employer, your district must take care to constrain questions about an employee’s medical condition to the four scenarios above, and to document the circumstances surrounding any conversation regarding a medical condition.

The EEOC makes it abundantly clear that an individual with a mental health condition that substantially limits his or her job performance or a major life activity (e.g., concentrating, eating, sleeping, regulating thoughts and emotions, etc.) has the right to ask for reasonable accommodations. Further, the EEOC provides that a disabling condition does not have to be permanent or severe to be “substantially limiting,” if the condition makes activities more difficult, uncomfortable, or time consuming compared to other individuals without mental health conditions. It is a best-practice to engage in the interactive ADAAA dialogue with any employee who discloses a mental health condition, and to document these conversations just as the district would with an employee experiencing a physical disability.

To read the fully FAQ issued by the EEOC, please visit: https://www.eeoc.gov/eeoc/publications/mental_health.cfm.