EEOC Mental Health Guidance Called ‘Gift for Employers’

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By Patrick Dorrian

Recent guidance from the Equal Employment Opportunity Commission will help educate workers with mental health conditions and their medical providers about federal disability rights laws and how to safely seek legal protections, according to management attorneys and rights advocates.

It’s a definite plus for employers, as well, management attorneys said. The guidance consist of a publication on the job rights of employees and applicants with mental health condition along with a fact sheet for mental health providers.

“It’s written in a way that can be understood,” the National Disability Rights Network’s Ken Shiotani said. The fact sheet for medical providers is especially helpful, he told Bloomberg BNA. Shiotani’s a senior staff attorney with the Washington-based organization.

The guidance likewise “is a great, concise resource for employers,” management attorney Terri Gillespie told Bloomberg BNA.

The EEOC didn’t really add anything new substance-wise in the guidance, but rather pulled together previously released material in a user-friendly fashion, Stephen P. Sonnenberg of management firm Paul Hastings LLP said. It addresses key questions on the issue of mental health conditions in the workplace under the Americans with Disabilities Act, he said.

Number 9, Number 9, Number 9

Like Shiotani, Gillespie praised the agency’s fact sheet for mental health providers.

Bullet point number 9 “is a gift for employers,” Gillespie said. It discusses the type of documentation a medical provider can furnish an employer to help evaluate a worker’s condition and need for accommodation.

“I have clients all the time that are confused about what they can ask for” from a mental health provider under the ADA’s confidentiality requirements, and “what they can get” from providers in the way of documentation, said Gillespie. She’s a partner in the Philadelphia office of Obermayer Rebmann Maxwell & Hippel LLP.

Gillespie said she has long advised clients “to spoon-feed” workers seeking accommodation about specifically what information is needed—so that workers can pass that on to their providers.

Bullet point number 9 “is the EEOC blessing that approach,” she said. Employers can point to the fact sheet and tell an employee “this is what we need,” she said.

Provide the fact sheet and a job description to the worker’s doctor, or put the details of bullet point 9 in a letter to the provider, Gillespie said.

Case-by-Case Approach Still Required

“But every situation is unique,” Gillespie added, so employers must address situations on a case-by-case basis.

Agreeing, Sonnenberg said there are literally hundreds of different diagnoses for mental health conditions in addition to the most common and well-known ones. He heads his firm’s New York employment law department and formerly practiced psychotherapy as a licensed clinical social worker.

“It’s necessary to always engage in an individualized inquiry,” even though the EEOC says bipolar disorder, schizophrenia, post-traumatic stress disorder and other conditions typically should easily be found to be disabilities, he told Bloomberg BNA.

It’s always necessary to determine whether a worker disclosing a mental health condition is protected under the ADA, Sonnenberg said. “That the EEOC says that some conditions easily meet” the ADA’s coverage requirements “doesn’t eliminate the need for an individualized inquiry,” he said.

Normalization Not Fully Successful

The EEOC guidance furthers the agency’s push, since the late 1990s, “to normalize” mental health issues, Sonnenberg said.

The commission throughout the years has “repeatedly underscored” that mental disabilities are “on equal footing” with physical disabilities when it comes to worker rights under the ADA, he said.

But workers still have a “healthy fear” about disclosing mental illness to an employer, Cyndy Miller, the legal director at NDRN member Disability Rights Iowa, told Bloomberg BNA.

“It’s not getting tremendously better from what we’re hearing” from the local member agencies that make up the NDRN’s network, Shiotani said (see related story).

But the EEOC’s emphasis on the issue does increase openness, Disability Rights Iowa’s Executive Director Jane Hudson told Bloomberg BNA.

The agency’s long-term efforts and recent guidance, and society’s general “embrace of” individuals of diverse backgrounds and circumstances, make disclosure of mental health conditions in the workplace increasingly more likely, Sonnenberg said.

The rise in the number of mental health-based charges the commission has closed indicates that job protections for workers with mental health struggles will remain a focus of the agency, he added.

The increase in merit factor resolutions—settlements, withdrawals with benefits, and successful and unsuccessful conciliations—involving PTSD and depression between 2006 and 2016 “really jumps out at you,” Sonnenberg said.

Be Prepared for Accommodation Requests

While the aging of the workforce may play a role in more employees coming forward with mental health conditions, at least one study found that millennials experience depression at work more than any other generation.

With society making more of a push to diagnose mental health illness in children, young people coming into the workforce are sometimes already being treated for such conditions, Gillespie said. Moreover, the stresses of the workplace may trigger a pre-existing condition or cause it to worsen, she said.

Employers, therefore, should “presume employees will be increasingly comfortable” self-identifying as having a mental health condition and requesting reasonable accommodation for it, Sonnenberg said.

It’s critical for businesses to review their processes for handling job accommodation requests from the mentally ill and to train managers and human resources staff who may be involved in the process, he said.

Managers and HR need to know how to handle accommodation requests, including what medical information may be sought from a worker, he said.

Businesses need to put clear guidelines in place, Sonnenberg advised.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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