Any organization’s employees may be living with mental health conditions such as depression, post-traumatic stress disorder, bipolar disorder or other mental health conditions. Employees have workplace privacy rights, including protection against discrimination and harassment, and a legal right to ask for reasonable accommodations to help perform their job.
The U.S. Equal Employment Opportunity Commission outlines the rights afforded to employees by the Americans with Disabilities Act.
Is an employer allowed to terminate an employee because of a mental health condition?
No, it is illegal for an employer to discriminate against an employee simply because they have a mental health condition. This includes terminating the employee, rejecting the employee for a job or promotion, or forcing the employee to take leave.
An employer doesn't have to hire or keep individuals in jobs they can't perform, or employ individuals who pose a "direct threat" to safety — a significant risk of substantial harm to self or others. However, an employer cannot rely on myths or stereotypes about mental health conditions when deciding whether an employee can perform a job or pose a safety risk. Before an employer can reject someone for a job based on that person’s condition, it must have objective evidence that the individual cannot perform their job duties, or that the individual would create a significant safety risk, even with a reasonable accommodation.
Is an employee allowed to keep their condition private?
In most situations, an employee can keep their condition private. An employer is only allowed to ask medical questions, including questions about mental health, in four situations:
- When an employee asks for a reasonable accommodation.
- After an employer makes a job offer, but before employment begins, as long as everyone entering the same job category is asked the same questions.
- When the employer is engaging in affirmative action for people with disabilities —such as an employer tracking the disability status of its applicant pool in order to assess its recruitment and hiring efforts, or a public sector employer considering whether special hiring rules may apply — in which case the individual may choose whether to respond.
- On the job, when there is objective evidence that the employee may be unable to do their job or the employee may pose a safety risk because of the employee’s condition.
What if the employee’s mental health condition could affect their job performance?
An employee may have a legal right to a reasonable accommodation that would help them do their job. A reasonable accommodation is some type of change in the way things are normally done at work. Examples of accommodations include
- altered break and work schedules such as scheduling work around therapy appointments,
- quiet office space or devices that create a quiet work environment,
- changes in supervisory methods such as written instructions from a supervisor who usually does not provide them,
- specific shift assignments, and
- permission to work from home.
Employees can receive a reasonable accommodation for any mental health condition that would, if left untreated, "substantially limit" their ability to concentrate, interact with others, communicate, eat, sleep, care for themselves, regulate their thoughts or emotions, or do any other "major life activity."
How can an employee get a reasonable accommodation?
The employee should ask for a reasonable accommodation. The employee should tell the supervisor, human resources manager, or other appropriate person that a change at work is needed because of a medical condition. The employee may ask for an accommodation at any time. An employer does not have to excuse poor job performance, even if it was caused by a medical condition or the side effects of medication. It is generally better to get a reasonable accommodation before any problems occur or become worse. The employee doesn’t need to have a particular accommodation in mind, but they can ask for something specific.
What will the employer do after a reasonable accommodation is requested?
The employer may ask the employee to put the request in writing, and to generally describe the condition and how it affects the employee’s work. The employer may also ask the employee to submit a letter from their health care provider documenting the mental health condition, and that the employee requires an accommodation because of it. The employer may ask the health care provider whether particular accommodations would meet the employee’s needs.
If a reasonable accommodation would help an employee to do their job, the employer must provide one, unless the accommodation involves significant difficulty or expense. If more than one accommodation would work, the employer can choose which one to provide. Employers can't legally terminate an employee, or refuse to hire or promote, because an employee asked for a reasonable accommodation. The employer cannot charge the employee for the cost of the accommodation.
What can the employer do if there's no way the employee can do their regular job, even with an accommodation?
Employees may be entitled to paid or unpaid leave as a reasonable accommodation if that leave will help them get to a point where they can perform the essential functions of their job to normal standards.
If an employee is unable to do their regular job permanently, a reasonable accommodation may be to reassign them to a job that they can do.
Each year, the SC Municipal Insurance and Risk Financing Fund members receive 10 free hours to discuss labor or employment issues with a designated employment and labor hotline attorney.
For additional information on the labor hotline, contact Mike Waslewski, SCMIRF claims manager at mwaslewski@masc.sc or 803.933.1272.