The EEOC Issues Guidance for Mental Health Providers in Reasonable Accommodation Cases

The EEOC has jurisdiction over claims for disability discrimination under the Americans with Disabilities Act.  Many cases under the ADA involve an employer's duty to provide reasonable accommodations to a disabled employee.

In the case of mental disabilities, the reasonable accommodation issue can often be difficult because the nature of many mental disabilities (such as depression and anxiety attacks) are more generalized than physical disabilities (for example, a back injury),  The employee's mental health provider will often play a key role in determining the appropriate accommodation.

On May 1, 2013, the EEOC issued guidance to mental health professionals who are called upon to assist in the reasonable accommodation process.  For example, the EEOC states:

6. How Can I Help My Client Get a Reasonable Accommodation?

Your client may ask you to document his or her condition and its associated functional limitations, and to explain how a requested accommodation would help. The employer, perhaps in consultation with a health care professional, will use this information to evaluate whether to provide a reasonable accommodation, and if so which one. The person evaluating the accommodation request also may contact you to ask for clarification of what you have written, or to provide you with additional information to consider. For example, you may be told about a particular job function and asked whether the requested accommodation would help your client to perform it, or you may be asked whether a different accommodation would be effective where, for example, the requested accommodation would be too difficult or costly for the employer to provide.

Employers are required to keep all information related to reasonable accommodation requests confidential.

7. Am I Permitted to Disclose My Client's Medical Information?

The ADA does not alter a health provider's ethical or legal obligations. You should request a reasonable accommodation on behalf of a client or provide an employer with medical information about the client only if he or she asks you to do so and signs a release.

8. Could an Employer Discriminate Against My Client Because of the Information I Provide?

The ADA prohibits employers from harassing your client because of a mental health condition, and from terminating or taking other adverse actions against your client because of a mental health condition. Therefore, unless the information you provide shows that your client is unable to perform the essential duties of the job even with a reasonable accommodation, the employer legally cannot take adverse action based on the information.

However, employers sometimes discriminate illegally. You therefore may wish to discuss with your client the risks associated with disclosing the condition (such as potential illegal discrimination), and with not disclosing it (such as not having a reasonable accommodation that may be necessary to do the job).

This guidance provides useful information for employees and employers who are addressing accommodation issues in cases involving mental disabilities.

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes

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