Complying with the EEOC's Mental Health Requirements in the Workplace
Until recently, mental and behavioral health has been a societal stigma, especially in the workplace. However, it is becoming increasingly hard to overlook when charges of discrimination based on mental health conditions are on the rise. According to preliminary data from the US Equal Employment Opportunity Commission (EEOC), the commission resolved almost 5,000 charges of discrimination based on mental health conditions and obtained approximately $20 million for individuals with mental health conditions who were unlawfully denied employment and reasonable accommodations in the 2016 fiscal year.The conversation gained notoriety in December of 2016 when the EEOC published two resource documents.
The first- "Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights," summarized the rights of individuals with mental health conditions under the Americans with Disabilities Act of 1990 (ADA). The second-The Mental Health Provider's Role in a Client's Request for Reasonable Accommodation at Work - as the title suggests, explains the reasonable accommodation law to the employees' mental health providers. Under the ADA and other nondiscrimination laws, employers must provide "reasonable accommodations" to qualified employees with disabilities. Many employers are aware of the varying types of accommodations for people with physical and communication disabilities; but many are less familiar with accommodations for employees with disabilities that are not visible, such as mental or behavioral disabilities.
Understanding the EEOC's position on this topic is now crucial because it can help manage applicants and employees living with mental health problems, as well as respond to administrative claims alleging violations of mental health rights.
What is considered a mental health condition, and who gets reasonable accommodation?
Mental health conditions that may qualify for a reasonable accommodation, according to the EEOC, are essentially conditions that substantially limit one or more major life activities-these include brain/neurological functions and activities like communicating, concentrating, eating, sleeping, regulating thoughts or emotions, caring for oneself, and interacting with others. The EEOC notes that such conditions do not have to "result in a high degree of functional limitation to be 'substantially limiting'." The following are examples that qualify as disabling according to federal regulations:
- Major depressive disorder
- Bipolar disorder
- Post-traumatic stress disorder
- Obsessive-compulsive disorder
The EEOC notes that this list is not exhaustive and that an employee may qualify for a reasonable accommodation if he or she has a substantially limiting impairment in the past. In addition, the ADA does not protect individuals currently engaging in illegal drug use, nor does it require employers to tolerate use of alcohol or illegal drugs on the job. However, an employee with alcoholism or who was addicted to drugs in the past may be entitled to a reasonable accommodation.
Reasonable accommodation solutions for mental health conditions
Reasonable accommodation, as defined by the "Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights," guidance, is "any change in the work environment, or in the way things are customarily done that enables an individual with disability to enjoy equal employment opportunities."Mental health claims do not excuse any failure to meet production standards or rules of conduct that are applied consistently and are necessary for the operation of the business-even if the employee's difficulty was caused by a mental health condition, or the side effects of medication.
It is important to note that the employer ultimately decides which accommodation will be used. Sites such as the Job Accommodation Network (JAN) exist as a resource for ideas on how to potentially accommodate a worker with a mental health condition; however as the site itself states, it is only a "starting point in the accommodation process and may not address every situation. Accommodations should be made on a case by case basis, considering each employee's individual limitations and accommodation needs."
Employers and consultants that want to understand how to build a corporate culture that de-stigmatizes mental illness in the workplace can attend the Healthcare Revolution event, Oct. 28-30, 2018. The Mental Health and Behavioral Health Summit will take place during the conference bringing to nations top insurers and employers together to explore prevention and early identification and intervention as well as some of the most innovative ways employers are addressing this today. While employers are encouraged to still seek consultants, it is also important to give employees a voice in the decision.
When a healthy work environment is created, workers and employers can explore some of the following questions: What limitations is the employee with a mental health impairment experiencing? How do these limitations affect the employee and the employee's job performance? What accommodations are available to reduce or eliminate these problems? Are all possible resources being used to determine possible accommodations? Do supervisory personnel and employees need training regarding mental health impairments? Common concerns and frequent accommodations for workers with mental health conditions are:
Concentration or distraction issues:
Those who have difficulty concentrating - for example employees who suffer from attention-deficit/hyperactivity disorder (ADHD) - may require employers to reduce distractions in the work area by making it quieter; provide more frequent reminders of task/memory aids; working from home (if this doesn't cause undue hardship to the employer); and in some cases, restructure their position to include only essential functions.
Managing treatment and medication:
When it comes on to employees on medication, employers may provide a flexible schedule to allow workers to attend their appointments or stabilize their medical plan. In some cases, providing more frequent breaks for medication and allowing the worker to use a water bottle during worktimes may also be necessary.
Workers suffering from anxiety may require the presence of a support animal, or flexible work environment (one that allows them to attend meetings remotely, or occasionally work from home). Employers can also exchange non-essential job tasks with another employee or change the management style of the employee's supervisor. As more efforts are placed into promoting mental health, it is crucial for employers to build a corporate culture that de-stigmatizes mental illness in the workplace. Not only is it the law, but a 2016 World Health Organization (WHO) study shows that every USD $1 put into scaled up treatment for common mental disorders, there is a return of USD $4 in improved health and productivity.