EEOC Issues Guidance on Mental Health in the Workplace

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a resource document explaining workplace rights for individuals with mental health conditions under the Americans with Disabilities Act (ADA). The ADA is a federal statute that prohibits discrimination on the basis of an actual or perceived disability. The ADA also requires employers to provide reasonable accommodations to their disabled employees, identified via an interactive process, so that those employees can perform their job duties.

This resource document, titled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights” covers a number of important topics focused on the numerous issues that arise in this context.

First, the guidance makes it clear that an employer cannot fire or discipline an employee because that employee has a mental health condition, stressing that an employer cannot rely on myths or stereotypes about mental health conditions when making employment decisions.

Second, the guidance provides that employees may keep their mental condition private, as is often their preference in these situations, unless (1) the employee has asked for a reasonable accommodation, (2) the employer has made a job offer, but employment has not commenced, (3) the employer is engaging in an affirmative action program to hire individuals with disabilities, or (4) there is objective evidence that the employee cannot perform his/her job or that he/she poses a direct safety threat.

Third, the guidance identifies reasonable accommodations that may be appropriate for individuals with mental health conditions, including (1) altered break and work schedules to allow for attendance at therapy appointments, (2) quiet office space, (3) changes in supervisory methods, (4) specific shift assignments, or (5) permission to work from home.

Fourth, the guidance reiterates that a condition need not be ‘permanent’ or ‘severe’ to be a covered disability. Instead, a condition may qualify as an ADA-protected disability if it makes activities more difficult or time-consuming to perform compared to the way most people perform them.

Fifth, the guidance identifies the following as disabilities that are likely protected and notes that they can be disabilities even if the symptoms come and go: major depression, post-traumatic stress disorder (PTSD), bipolar disorder, schizophrenia, and obsessive compulsive disorder (OCD).

Sixth, the guidance makes clear that the ADA prohibits harassment based upon an employee’s disability. According to the guidance, employees who are being harassed because of a disability should notify their supervisors and should follow the employer’s reporting procedures. Employers are legally required to take action to prevent this type of harassment.

In light of this new guidance, employers should (1) train their supervisors on the ADA-mandated interactive process and how to handle internal complaints of harassment and (2) review their internal policies to insure they are ADA compliant.  If you have any questions about disability law or the interactive process, please feel free to contact us.

What Does Legal Marijuana Mean for Massachusetts Employers?

Yesterday, Massachusetts voters approved a law permitting recreational use of marijuana by a margin of 53.6 percent to 46.4 percent.   Numerous employers have asked how this impacts the workplace.  Are employees entitled to utilize recreational marijuana at work or on a break?  Do employers have to allow for marijuana use as an accommodation to a disability?  Can employers no longer enforce drug/alcohol-free workplace policies as they relate to marijuana?

Thankfully, the 12-page statute provides clarity for employers wondering how this affects the workplace in Section 2(e):

(e) This chapter shall not require an employer to permit or accommodate conduct otherwise allowed by this chapter (i.e. the use of recreational marijuana) in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.    

This section makes clear that employers will not have to allow marijuana use in the workplace and will still be able to enforce a drug-use policy that restricts the consumption of marijuana by employees. 

Employers who do not have a drug/alcohol-free workplace policy should have one.  Employers who have not updated their policies since the 2012 legislation legalizing medical marijuana should do so.  Please contact us if you would like assistance in drafting or reviewing workplace policies to be sure they comply with these laws.