EEOC Issues Informal Guidance on Reasonable

Accommodations for Mental Health Conditions

By: Lawrence P. Postol, Vice President For Legislative Affairs
Lpostol@seyfarth.com
EEOC Issues Informal Guidance on Reasonable Accommodations
for Mental Health Conditions
Citing an increase in charges of discrimination based on mental health
conditions during fiscal year 2016, the EEOC released a resource document on
December 12, 2016, explaining workplace rights for individuals with mental
health conditions under the Americans with Disabilities Act (ADA). The resource
document Depression, PTSD, & Other Mental Health Conditions in the
Workplace: Your Legal Rights is presented in a question and answer format
intended for applicants and employees. The informal guidance is a useful primer
for understanding the EEOCs expanding stance on employer obligations to
provide reasonable workplace accommodations.
At first blush, the resource document is nothing new. In question 1, the
EEOC reiterates that employers are prohibited from discriminating against
applicants and employees because of a mental health condition. The document
also notes that employers do not have to hire or retain individuals who are unable
to perform the essential functions of a job or who pose a direct threat, which is
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defined as having being a significant risk of causing injury to themselves or others,

based on accepted medical science, and not just based on speculation. The Agency
emphasizes that employers must rely on objective evidence, not myths or
stereotypes, that would indicate that an individual is unable to perform a job or
poses a significant safety risk, even with a reasonable accommodation, before
taking an adverse action against the individual.
Question 2 addresses the right of an applicant or employee to keep a mental
health condition private. The EEOC notes that under the ADA, employers are only
permitted to ask questions about the medical or health information of an applicant
or employee when (1) an individual requests a hiring process or workplace
accommodation; (2) when the employer requests medical information or testing
post-offer, but pre-employment, provided everyone entering the same job category
is subject to the same requirement; (3) when the employer is engaging in
affirmative action for persons with disabilities; and (4) when there is objective
evidence that the employee may not be able to do his or her job, or the employee
poses a safety risk in the workplace because of his or her condition.
Questions 3 through 6 respond to hypothetical questions about when a
reasonable accommodation may be required, how to request one, and the
employers obligation to respond, even when no accommodation exists that
permits an employee to fulfill the essential functions of a position. The EEOCs
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responses reveal the breadth of the Agencys interpretation of the ever-vexing

question of what constitutes a reasonable accommodation. In the first instance, in
response to Question 3, the EEOC, without using the word disability, states that
an individual is entitled to a reasonable accommodation for any mental health
condition that would, if left untreated, substantially limit your ability to
concentrate, interact with others, communicate, eat, sleep, care for yourself,
regulate your thoughts or emotions, or do any other major life activity.

It

should be remembered that the 2008 Amendments to the ADA were designed in
part to expand the definition of disability to include mental disabilities. Thus, the
definition of major life functions (which is central to determining if a condition is a
covered disability) was expanded to include concentration and other mental
abilities. The EEOC notes that the mental health condition need not be either
permanent or severe to constitute substantially limiting and that conditions like
major depression, post-traumatic stress disorder (PTSD), bipolar disorder,
schizophrenia, and obsessive compulsive disorder (OCD) should easily qualify
as a covered disability protected by the ADA.
The answer to Question 3 also provides broad, if imprecise, definition of
reasonable accommodation, defining it as simply some type of change in way
things are normally done at work and providing standard examples such as altered
break and work schedules, quiet office space, changes in supervisory methods,
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along with some more controversial recommendations, such as choice of specific

shift assignments and permission to work from home. And in Question 6, the
Agency re-states the EEOCs vague standard that an employee who is unable to
perform the essential functions of his or her position, even with an
accommodation, may be entitled to an indeterminate amount leave independent
of FMLA leave that will help you get to a point whether you can perform those
functions. Of course, several court of appeals have rejected this position, and
noted that an indefinite leave is never reasonable. The courts have indicated that 6
months to a year is probably the limit for a reasonable accommodation leave of
absence.
The EEOC guidance document also notes that failing leave, if an employee
is permanently unable to perform his or her job, he or she may be entitled to job
reassignment. The courts have been split on whether the reassignment right would
prevail over a more qualified applicant, although the majority and most recent
decision suggest it would not. Importantly, the Agency does not caveat here that
any request for reasonable accommodation must be fundamentally intended to
facilitate the employees performance of the essential functions of the job. Rather,
the document implies that by virtue of having a mental health condition an
individual or employee may be entitled to ask for some change in the way things
are normally done at work.
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Questions 4 and 5 fortunately return to well-worn ADA principles. The

EEOC directs employees who need a reasonable accommodation to ask for one
and encourages employees to do so before workplace difficulties arise because an
employer does not have to excuse poor job performance, even if it was caused by a
medical condition or the side effects of medication. The EEOC also notes that
employers are entitled to ask for health care provider documentation verifying the
employee has a mental health condition and requires a workplace accommodation
because of it. The document provides the link to what it terms the companion
document The Mental Health Providers Role in a Clients Request for a
Reasonable Accommodation at Work .

The EEOC suggests that individuals

provide the document to their health care providers when seeking medical
documentation in relation to a request for a reasonable accommodation. The
document also reminds that if a reasonable accommodation, justified by relevant
medical provider documentation, would help an employee do his or her job, the
employer must implement it barring significant difficulty or expense.
Though only informal guidance, this resource document reminds employers
of the EEOCs expansive interpretation of what constitutes a reasonable workplace
accommodation. What does that mean for employers? Employers should continue
to meaningfully engage in the interactive process with any employees seeking

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workplace accommodations for a physical or mental disability and assiduously

document those efforts.
2017 by Lawrence Postol
Mr. Postol is the Vice President for Legislative Affairs on the NOVA SHRM
Board, and a partner in the Washington, D.C. office of Seyfarth Shaw LLP. Mr.
Postols acknowledges that his partners deserve the credit for writing most of this
article, for which he thanks them. If you have any questions about the information
in this article, you may e-mail Mr. Postol at Lpostol@seyfarth.com or call him at
202-828-5385.
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