Responding to the EEOC’s Increased Focus on Mental Health Discrimination
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As society’s understanding of mental health continues to grow, so has government acknowledgment and efforts to protect workers with such conditions. Workers who have a mental health condition, such as anxiety or depression, are often protected against discrimination and harassment at work because of the condition. They may also have workplace privacy rights and a legal right to reasonable accommodations to help them perform the essential functions of their jobs.
The U.S. Equal Employment Opportunity Commission (EEOC) enforces the Americans with Disabilities Act (ADA), a federal law that protects individuals with disabilities. In most cases, individuals with diagnosed mental health conditions are covered under the ADA.
This article highlights mental health conditions, outlines the EEOC’s enforcement plans and offers ADA compliance guidance for employers.
Mental Health and the ADA
The ADA only applies to employers with 15 or more employees. The law defines “disability” as a physical or mental impairment substantially limiting one or more major life activities. When qualified job applicants or employees have a mental health condition meeting those criteria, they have workplace rights under the ADA. The ADA Amendments Act of 2008 broadened the definition of disability to provide legal protections against employment discrimination for more individuals with disabilities, including people with psychiatric disabilities. “Psychiatric disability” and “mental illness” are often used interchangeably. The term “mental illness” is typically used in a medical context to refer to a wide range of emotional and mental health conditions. In contrast, “psychiatric disability” is typically used in a legal or policy context to refer to impairments covered under the ADA.
The National Institute of Mental Health estimates that about 18% of U.S. workers have a mental health condition in any given month. This means that psychiatric disability is one of the most common types of disability covered under the ADA. Since mental health conditions can substantially limit brain function, individuals with such disorders will usually be determined to have an ADA-covered disability. The following mental health conditions may qualify under the ADA:
- Attention-deficit/hyperactivity disorder (ADHD)
- Bipolar disorder
- Schizophrenia
- Generalized anxiety disorder
- Major depression
- Obsessive-compulsive disorder (OCD)
- Panic disorders
- Personality disorders
- Post-traumatic stress disorder (PTSD)
Examples of reasonable accommodations for an employee with a mental disability may include:
- Allowing the employee to telework
- Allowing more frequent breaks
- Alternating supervisor methods (e.g., providing written instructions and providing more frequent or different reminders of tasks and due dates)
- Changing the employee’s work schedule
- Changing the employee’s work location (e.g., moving to a quieter space or allowing the use of a white noise machine or headphones)
- Reassigning to a vacant position
- Permitting a leave of absence under the Family and Medical Leave Act, state law or company policy
EEOC Enforcement Plans
In fiscal year (FY) 2021, employee allegations of unlawful discrimination based on mental health conditions accounted for about 30% of all ADA-related EEOC-filed charges. That figure significantly increased from the 20% reported in FY 2010. Anxiety and PTSD are the leading conditions contributing to this trend.
The EEOC recently released its strategic enforcement plan (SEP) for FYs 2024-28, emphasizing a greater focus on discrimination against vulnerable populations, including employees with mental health disorders. The plan aims to focus and coordinate the agency’s work to advance equal employment opportunities sustainably.
Employer Guidance
Supporting employees battling mental health conditions is not only important for compliance reasons. While organizations seek to avoid liability under the ADA, support and guidance can help foster an inclusive environment for employees with mental health conditions.
Consider the following employer strategies to stay compliant and create a supportive culture:
- Monitor EEOC compliance. Organizations should stay current on all EEOC updates and consult local legal counsel before making any workplace changes. Employers can be proactive with compliance responsibilities by setting calendar reminders well before deadlines and meeting regularly to review compliance with EEOC guidance.
- Review workplace policies. Various workplace policies have the potential to generate discrimination claims. Employers can review and assess policies such as background-check practices, pre- and post-hire personality or behavioral tests, inequitable leave policies and unnecessary physical requirements.
- Review compensation practices. When reviewing their compensation practices, organizations may discover disparities that adversely affect employees based on certain protected characteristics. With a clearer picture, employers can then address those disparities to ensure equal opportunity.
- Train managers. Supervisors and managers can be trained to identify and respond to requests for reasonable accommodation to ensure decision-making isn’t based on outdated biases or misunderstandings about mental health.
- Train all employees. Mental health awareness can help fight the stigma often associated with conditions. Open and honest conversations about mental health can help foster an inclusive work environment. Training can help increase empathy and understanding to ensure all employees feel valued, respected and part of the team.
Summary
As outlined in the EEOC’s latest SEP, the federal government continues to crack down on organizations that discriminate against workers with mental health conditions. As such, employers should continually monitor for EEOC updates and review applicable workplace policies and practices that could cause a discrimination claim. Aside from compliance, mental health awareness is critical for fostering a successful and inclusive workplace environment.
Contact us today for additional workplace resources.
- Published in Blog
Understanding the EEOC’s New Guidance on Accommodating Visual Disabilities Under the ADA
This article is from RISQ Consulting’s Zywave client portal, a resource available to all RISQ Consulting clients. Please contact your Benefits Consultant or Account Executive for more information or for help setting up your own login.
On July 26, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) issued new guidance explaining how the Americans with Disabilities Act (ADA) applies to job applicants and employees with visual disabilities. The EEOC originally issued guidance on how ADA discrimination requirements apply to individuals with visual disabilities on May 7, 2014. The new guidance revises and amends the EEOC’s original document. It addresses reasonable accommodations, safety concerns, workplace harassment and discrimination issues arising from the use of artificial intelligence.
In 2022, the Centers for Disease Control and Prevention found that approximately 18.4% of all U.S. adults are blind or have “some” or “a lot” of difficulty seeing, even with corrective lenses. Unfortunately, many of these individuals struggle to find employment. Data from the most recent U.S. Census Bureau’s American Community Survey indicate that only 46.2% of people with visual disabilities were employed in 2019, compared to 78.6% of people without disabilities. These statistics show that there are still significant barriers to employment for people with visual disabilities.
Employers who successfully accommodate job applicants and employees with visual disabilities can gain access to a talented group of workers. They may also experience benefits such as improved productivity and decreased absenteeism from individuals with visual disabilities, decreased workers’ compensation costs and improved workplace diversity. Additionally, compliance with EEOC guidance is required under federal law and can reduce the risk of costly discrimination lawsuits.
This article provides a general overview of the EEOC’s new guidance and highlights key strategies for employers to respond to accommodation requests.
Understanding the New EEOC Guidance
In question-and-answer format, the new guidance provides information on the following topics:
- When employers may ask individuals about their vision
- How employers should treat voluntary disclosures about visual disabilities
- What types of reasonable accommodations individuals with visual disabilities may need
- How employers should handle safety concerns relating to individuals with visual disabilities
- How employers can ensure that no employee is harassed due to a visual disability or any other disability
- How the use of artificial intelligence and algorithms in employment decisions can impact individuals with visual disabilities
Additionally, the EEOC guidance states that individuals with vision impairment, including limited or low vision, may be entitled to accommodation if they are or have a record of being substantially limited in their vision or another major life activity. Accommodation must be based on the needs of the individual requesting them and determined through an interactive process. Examples of reasonable accommodations provided in the recent EEOC guidance include:
- Assistive technology, such as text-to-speech software
- Accessible materials (e.g., Braille or large print)
- Modification of employer policies or procedures, such as allowing guide dogs in the work area
- Ambient adjustments (e.g., brighter office lights)
- Sighted assistance or services, like a qualified reader
Considerations for Employers to Accommodate Individuals With Visual Disabilities
According to the EEOC, employers should provide reasonable modifications for employees with visual disabilities (e.g., flexible scheduling, human or technological readers, or audio alarms) if it doesn’t cause undue hardship for the business. This duty is required under the ADA. Successfully accommodating job applicants and employees with visual disabilities may include the following:
- Understanding when an accommodation request is being made—Requests for accommodation may be made verbally or in writing. To make a request, individuals do not have to mention the ADA or use the term “reasonable accommodation.” For example, an employee may make an accommodation request simply by telling their manager they’re having trouble reading due to a degenerative eye condition. If employers become aware of an individual’s need for an accommodation or believe that a medical condition is causing a performance or conduct problem, they may ask the employee how to solve the problem and if the employee needs a reasonable accommodation. This can reduce misunderstandings and the risk of potential litigation if accommodation requests are ignored.
- Determining appropriate accommodations through an interactive process—Once a reasonable accommodation is requested, the employer and the individual should discuss the individual’s needs and identify the appropriate reasonable accommodation. These discussions allow employers to find the best solutions for an impacted employee’s individual needs and show the worker they’re valued. When deciding which accommodation to implement, employers can consider the affected employee’s preference but are not required to do so. Employers can refer to the examples of reasonable accommodations provided in the recent EEOC guidance.
- Determining if accommodation is reasonable—When an individual requests workplace accommodation, employers must determine if they can provide accommodation without undue hardship. Such decisions should be made on a case-by-case basis, taking into consideration the cost of the accommodations, the financial resources of the employer and the impact the accommodations will have on the organization.
- Asking for medical documentation when appropriate—Employers may request documentation to establish that an individual has an ADA disability that requires reasonable accommodation in the workplace if the disability isn’t obvious. Alternatively, employers can discuss the disability with the employee requesting accommodation.
- Communicating openly with affected individuals—An individual’s needs for accommodation may change over time. While some accommodations may be permanent, others may only be necessary for weeks or months. Employers should keep communication open with individuals who have reasonable accommodations to ensure they’re able to be as productive as possible and the employer follows all legal requirements.
Conclusion
Individuals with visual disabilities can contribute to a talented and diverse workforce. Employers who successfully accommodate such individuals may experience improved retention and productivity from valued employees. Employers can use the recent EEOC guidance to create a safe and accommodating environment that complies with federal regulations for individuals with visual disabilities.
Contact us today for more workplace resources.
- Published in Blog