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EEOC Releases Guidance Concerning the Mental Health Provider’s Role in ADA Reasonable Accommodation Requests

The EEOC recently published guidance for mental health providers describing their role in an employee or applicant’s request for a reasonable accommodation under the Americans with Disabilities Act (“ADA”). While the guidance is primarily aimed at providing information to mental health providers, it also presents the EEOC’s pronouncements on some fundamental precepts on the ADA and the reasonable accommodation process, which should interest employers and practitioners alike.

The ADA and Reasonable Accommodation

The EEOC guidance first provided a primer on the ADA, reminding readers that the ADA prohibits employers with 15 or more employees from disability-based discrimination. The federal statute also allows employees and job applicants with disabilities the right to seek reasonable accommodations at work.

The EEOC guidance then listed common reasonable accommodations sought by employees / applicants:

  • Altered break and work schedules (to, for example, attend medical appointments)
  • Time off for medical treatment
  • Changes in supervisory methods (for example, provision of written instructions and breaking tasks into smaller component parts)
  • Elimination of non-essential job functions that someone cannot perform because of a disability
  • Where an employee has successfully performed job duties but can no longer do so because of a disability, re-assignment to a vacant position

While the EEOC reminded readers that this list is not exhaustive, it provides a helpful prompt for employers engaged in the interactive dialogue with employees seeking reasonable accommodations.

What Conditions Qualify for Reasonable Accommodations?

The guidance also describes mental health conditions that may qualify for a reasonable accommodation. Fundamentally, conditions that substantially limit one or more major life activities, including brain/neurological functions and activities like communicating, concentrating, eating, sleeping, regulating thoughts or emotions, caring for oneself and interacting with others, may provide a predicate for a reasonable accommodation. The EEOC noted that such conditions do not have to “result in a high degree of functional limitation to be ‘substantially limiting.’”   The document provided examples that qualify as disabling according to federal regulations:

  • Major depressive disorder
  • Bipolar disorder
  • Post-traumatic stress disorder
  • Obsessive-compulsive disorder
  • Schizophrenia

The EEOC again noted that this list is not exhaustive and that an employee may qualify for a reasonable accommodation if he or she had a substantially limiting impairment in the past.   In addition, the guidance provided that 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.

The Mental Health Provider’s Role

The EEOC guidance explains that an employee’s mental health provider could: (1) help document her client’s condition and functional limitation, and (2) explain how a reasonable accommodation could assist the employee. The guidance described how the mental provider might interact with the employer or its designated health care provider to evaluate a request for a reasonable accommodation.

The EEOC guidance also describes how an employee’s mental health provider can assist employees in documenting a reasonable accommodation request. The EEOC recommended the following documentation:

  • The provider’s professional qualifications
  • The nature of the employee’s condition
  • The functional limitations the employee would suffer absent treatment
  • The need for a reasonable accommodation
  • Suggested accommodation(s)

Employers Obligations in the Reasonable Accommodation Process

The EEOC cautioned that while employers are legally required to provide a reasonable accommodation to assist disabled employees with job duties, employers are not obligated to provide accommodations that are facially unreasonable or which would cause significant financial or operational difficulties to employers. In addition, the guidance reminds mental health providers that an employee’s disability is never an excuse for failure to meet production standards or abide by rules of conduct.  Thus, it is incumbent on employees to bring their condition to their mental providers’ attention even if an employee’s failure derived from their condition or from the side effects of medication.  Finally, employers are not obliged to retain employees who cannot perform their jobs even with a reasonable accommodation.

The guidance also reminds employers that information related to a request for a reasonable accommodation is confidential and that adverse action taken as a result of information provided through an accommodation request is a violation of the ADA.

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Robert Sheridan