During (and for weeks after) the holiday season, many workers experience a spike in productivity-robbing clinical depression. As a timely reminder, the EEOC has issued fresh guidelines on the employment rights of workers suffering from that affliction and other mental conditions. Employers need to be clear on this score as well. Here's what the EEOC had to say.

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Winter weather, a lack of sunshine and even the holiday season can lead to
clinical depression that can cause workplace productivity to dip. To help
employers understand this topic, the Equal Employment Opportunity
Commission (EEOC) has provided guidelines, titled, "Depression, PTSD, and
Other Mental Health Conditions in the Workplace: Your Legal Rights.“
Although most employers know that the Americans with Disabilities Act (ADA)
requires them to make a "reasonable accommodation" for workers with
physical limitations, matters can get trickier when the disability is
psychological. As with other disabilities, the ADA's protections in this area
cover hiring and firing decisions, harassment and denied promotion
opportunities. However, as the guidelines make clear, the law doesn't require
employers to "hire or keep people in jobs they cannot perform, or employ
people who pose a direct threat to safety" to themselves or others.
The EEOC goes on to say that making a determination that an employee with
a mental condition can't do the job, even with a reasonable accommodation,
must be based on "direct evidence."

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Because of general sensitivity to mental
health issues, it's understandable that
an employee suffering from depression,
anxiety, post traumatic stress disorder,
bipolar disorder or some other condition
might be reluctant to raise the topic
with you.
The EEOC identifies the circumstances
under which you can learn about or ask
an employee whether he or she has a
mental health condition.

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They include:
• When the employee asks for a reasonable accommodation,
• After you've hired the individual but before the employee starts work —
so long as you ask the same question of all new hires,
• When you're engaged in an affirmative action effort to bolster hiring of
people with disabilities, and you want to track your progress, and
• After the employee has begun work and there's objective evidence that
the employee may be unable to perform the job or pose a safety risk.
If it becomes clear that the condition is negatively affecting job performance,
the EEOC urges employees to seek a reasonable accommodation. The EEOC is
telling individuals that they can seek a reasonable accommodation "for any
mental health condition that would, if left untreated, 'substantially limit' [the]
ability to concentrate, interact with others, communicate, eat, sleep, care for
yourself, regulate your thoughts or emotions, or do any other major life
activity."

5. Key Definitions
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What condition causes one's abilities to be "substantially" limited? While the
answer may be in the eye of the beholder, the EEOC says it doesn't need to be
"permanent or severe." The new guidance uses the following language to
define it: the condition "may qualify, for example, by making activities more
difficult, uncomfortable or time-consuming to perform compared to the way
most people perform them.”
When the limiting condition occurs episodically, "what matters," says the
EEOC, is "how limiting [the episodes] would be when the symptoms are
present."

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What sort of job modifications might be suitable for employees suffering from
depression, anxiety, post traumatic stress disorder or other mental health
condition? Here are some examples:
• Altered break or work schedules, particularly to allow an employee to
attend therapy appointments,
• Quiet office space "or devices that create a quiet work environment," for
example, a white noise machine or noise cancelling earphones,
• Changes in supervisory methods, such a providing written instead of oral
instructions,
• Specific work shift assignments, or
• Being able to work from home.

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But as with accommodating any other form of disability, these must not
involve "significant difficulty or expense" to you, the employer. Also, if more
than one form of accommodation could help the employee function better,
you can decide which one to offer.
The EEOC encourages employees to ask for an accommodation before the
disability reaches a crisis point because employers aren't obligated to excuse
poor performance, "even if it was caused by a medical condition or the side
effects of medication.”
If there's some expense involved in making the accommodation (for example,
building a quiet workspace), you can't ask the employee with the disability to
foot the bill.

8. Employers' Rights
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Employees requesting an accommodation don't need to be automatically granted
one. The request you receive must be in writing, and explain how the employee's
condition affects his or her work. You can ask the employee to furnish a letter
from a health care provider to corroborate the employee's assertions.
Once you're satisfied that the employee needs an accommodation, you can ask
the health care provider whether the accommodation being considered seems
appropriate to address the need. If, on the other hand, you aren't satisfied that
the accommodation request is justified, you can decline, and the ball is back in
the employee's court.
Be sure not to overlook any rights the employee might have to unpaid leave
under the Family and Medical Leave Act as well as any state or local laws.
Litigation may or may not follow. If you're not confident in your ability to assess
the employee's rights under the law, it would be prudent to consult with a legal
expert before declining to provide a requested accommodation.

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10. 14550 Torrey Chase Blvd., Ste. 360 Houston, TX 77014 USA
www.hrp.net
E-mail : info@hrp.net
Toll Free
Phone
Fax
:
:
:
877.880.4477
281.880.6525
281.866.9426