Mental Health in the Workplace: Don’t Ask, Don’t Tell

The EEOC just released a publication on the rights of job applicants and employees with mental health conditions. Such applicants and employees are likely to be protected by state and federal laws protecting disabled persons, and may entitle them to reasonable accommodations. There are also privacy rights attached to any information about mental health conditions, just like physical conditions. That means that any mental or physical health conditions that an employer is told about is information that the employer must keep confidential. As the EEOC publication explains, an employer is allowed to ask medical questions only in certain limited situations:

  1. When the employee asks for a reasonable accommodation;
  2. When an employee has been given a job offer and everyone entering the same job category is asked the same medical questions;
  3. When an employer is engaging in affirmative action for people with disabilities;
  4. When there is objective evidence that the employee may be unable to do their job or that the employee may pose a safety risk.

This isn’t new news for HR types.  But the release of this publication is a great opportunity for businesses to remind its managers and supervisors about certain rights for employees regarding mental health issues and to hand them copies of the EEOC publication to provide a tangible reminder that employees with mental health issues have rights that, if violated, could put the company at risk.  It is written for employees so tell managers, “listen, here is the law from the employees’ perspective so keep this in mind when you think you’re dealing with a mental health issue.  Oh, and, don’t be asking employees about what might be wrong with them and definitely don’t share information about mental health issues with anyone other than HR.”  Keep the rule simple.

Where can you find this publication?  Right here:

Where can businesses go for publications written specifically for business?  Well, right to the EEOC’s section just for employers:

If you do any training in this area, even if it is just handing out a publication to each manager and supervisor or discussing it at a management meeting, try to document that.  If you are ever faced with a complaint at the Maine Human Rights Commission, discussing training like that is one of the questions you are certain to have to answer.  And efforts on trying to educate managers and supervisors will go a long way to helping get through the Commission process successfully.

This article is not legal advice but should be considered as general guidance in the area of employment and corporate law.  Bryan Dench, Amy Dieterich, Jordan Payne, and Rebecca Webber are employment and labor law attorneys; others at the firm handle business and other matters.  You can contact us at 207.784.3200.  Skelton Taintor & Abbott is a full service law firm providing legal services to individuals , companies, and municipalities throughout Maine.  It has been in operation since its founding in 1853.