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.”

Right to Know

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. 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.”

Key Definitions

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.”

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.

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.

Employers’ Rights

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.