The Equal Employment Opportunity Commission’s (EEOC) recent article ‘Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights’ (found here) addresses rights of applicants and workers under the Americans with Disabilities Act (ADA).
Currently, the ADA does not make a distinction between mental and physical disabilities as applied to an employers’ obligations for non-discrimination and accommodation. This includes both intermittent and more severe mental conditions, such as major depression, bipolar disorder, OCD among others which would qualify as mental disability.
There must be objective evidence for an employer to withhold employment if a candidate or employee with a mental disability is unable to perform their job or poses a risk to themselves or others. Likewise, if a mental condition or medical side effect produces poor job performance, an employer is not obligated to ignore those outcomes.
When employers need to assess an employee’s ability to successfully and safely fulfill their task, there are qualifiers to when employers may ask an applicant or employee for more information about a mental disability. Specifically, these circumstances are: a reasonable accommodation is requested; before employment begins but job after an offer is made, all candidates for the same job are asked the same questions; individuals may choose not to answer if the employer engages in affirmative action for people with disabilities; there is clear evidence the mental health condition would prevent an employee from safely or effectively doing their job.
The EEOC mandates must provide suitable accommodations for an employee to complete their job unless that accommodation presents significant difficulty or expense. Employers may select which accommodation to provide when there is more than one.
Possible accommodations for mental disabilities include: a quiet office space; specific shift assignments; working from home; altered break and work schedules; time off or leave of absence.