HR Professionals Magazine March 2017

 

March 2017 Issue Highlights

In the Spotlight: J. Robert Carr, J.D., SHRM-SCP, Senior Vice President, Membership and External Affairs at the Society for Human Resource Management


Topics

March-2017-Issue-12

 

breaking news

 

EEOC’s Latest Guidance on Accommodating Mental Health Conditions

Recently the EEOC provided guidance to employees with mental conditions about their rights under the Americans with Disabilities Act. The guidance, called Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights. It outlines several important reminders about accommodating mental health conditions:

  • A disabled employee must be able to do the job and not be a direct threat to others.
  • Only act on objective evidence to ensure stereotypes don’t influence the decision.
  • Do not ask if an employee is disabled unless there is a really good reason.

Employers should not ask about an employee’s mental health condition unless it has a legitimate, business-related reason to do so. The guidance outlines only three situations in which the EEOC thinks an employer may ask:

(1) After a job offer but before employment begins and then only if others in the same position have been asked;

(2) When the employer is engaged in affirmative action for individuals with disabilities; and

(3) If there is objective evidence that the employee is not able to do the job or poses a safety risk to others. There are other situations in which an employer has a legitimate reason to ask, but employers should avoid doing so unless absolutely necessary.

  • Consider all alternatives when trying to accommodate an employee – be creative.

The guidance defines an accommodation as a “change in the way things are normally done at work.” It should include any arrangement that would not cause an “undue hardship” on the employer. An employer should not refuse an accommodation simply because it has not been done before.

The guidance provides several examples of what the EEOC considers reasonable accommodations specific to mental health conditions:

  • Altering break and work schedules, such as scheduling work around therapy appointments;
  • Providing quiet office space or devices that create a quiet work environment;
  • Changes in supervisory methods such as written instructions from a supervisor who usually does not provide them;
  • Specific shift assignments;
  • Permission to work from home; and
  • FMLA leave if time off would allow the employee to perform the job when they returned.

An employer should consider all accommodations suggested by the employee. The more accommodations an employer considers, the less likely the EEOC is to find that it failed to engage in the interactive process with the employee.

  • Work with the employee’s physician to define limitations and identify accommodations.

The guidance encourages employees to ask for an accommodation. Employers have the right to ask for documentation from a health care provider of the mental health condition. It even provides employees with a guidance document to show their health care providers related to reasonable accommodations.

Employers may also ask the employee’s health care provider if certain accommodations would meet the employee’s needs. Employers should rely on objective evidence only. Employers should be aware of an employee’s mental health condition or other potential disability. But remember that any decision the employee disagrees with could be viewed as harassment or retaliation.

 

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