Mental Health Issues at Work



Maintained

by Lewis Bossing and Sara Frank, Bazelon Center for Mental Health Law

This practice note addresses issues relating to individuals with mental health disabilities in the workplace and best practices for recruiting, hiring, and retaining individuals with disabilities. It provides guidance on employing people with psychiatric disabilities and describes key legal requirements for employers, including the Americans with Disabilities Act (ADA), the Rehabilitation Act of 1973, and the Family and Medical Leave Act (FMLA).

This practice note also examines recent Equal Employment Opportunity Commission (EEOC) litigation on behalf of individuals with psychiatric disabilities and describes the process for filing EEOC charges. We also provide insight on how supported employment can be used to expand employment opportunities for people with psychiatric disabilities. And we explain how supported employment is an important tool to help federal agencies and federal contractors meet affirmative action mandates.

Specifically, this practice note provides guidance on the following key issues concerning mental health in the workplace:

For more information on the ADA, see Americans with Disabilities Act: Guidance for Employers and Disability Law Resource Kit. For videos on the key issues under the ADA for mental health in the workplace, see Mental Health in the Workplace: Key Issues under the Americans with Disabilities Act (Part 1) Video and Mental Health in the Workplace: Key Issues under the Americans with Disabilities Act (Part 2) Video. For more information on state laws prohibiting disability discrimination and/or requiring reasonable accommodations, see Discrimination, Harassment, and Retaliation State Practice Notes Chart. For model non-jurisdictional and state disability accommodations policies, see the Attendance Policy and Disability Accommodation column of Attendance, Leaves, and Disabilities State Expert Forms Chart. Find the EEOC's guidance on the ADA's requirements concerning employment of psychiatric disabilities at Enforcement Guidance on the ADA and Psychiatric Disabilities. For more information on the use of artificial intelligence in hiring and employee evaluation, see guidance from the EEOC and the Department of Justice at The ADA and AI: Applicants and Employees and Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring, respectively.

For more information on the FMLA, see FMLA Leave: Guidance for Employers and Employees. For in-depth guidance on FMLA claims and litigation strategies, see Family and Medical Leave Act (FMLA) Litigation Defense Strategies. For additional information on the FMLA, see the Family and Medical Leave practice note page and the Family and Medical Leave forms page. For more information on FMLA requirements, see Family and Medical Leave Act Administration and Audit Checklist.

For information on state family and medical leave laws, see the Family, Medical, Sick, Pregnancy, and Military Leave column of Attendance, Leaves, and Disabilities State Practice Notes Chart. Also see Paid Family and Medical Leave State and Local Law Survey.

Prevalent Mental Health Disabilities

In 2020, the National Institute of Mental Health found that 52.9 million U.S. adults over the age of 18 (21.0% of U.S. adults) live with a mental illness, defined as a mental, behavioral, or emotional disorder varying in impact and impairment. NIMH: Mental Illness. Additionally, 14.2 million adults (5.6% of U.S. adults) live with serious mental illness, defined as a mental, behavioral, or emotional disorder that results in serious functional impairment. Id.

Psychiatric disabilities may include:

  • Anxiety disorder
  • Depression
  • Bipolar disorder
  • Schizophrenia
  • Obsessive-compulsive disorder
  • Post-traumatic stress disorder (PTSD) –and–
  • Attention deficit hyperactivity disorder (ADHD), among others

ADA National Network.

Workplace Discrimination against People with Psychiatric Disabilities

Individuals with psychiatric disabilities are "less likely to be working and more likely to be unemployed, out of the labor force, or underemployed than those without such disorders." Judith Cook: Employment Barriers for Persons with Psychiatric Disabilities. The pervasive prejudice attached to mental illness has led to widespread employment discrimination; employers have more negative attitudes about hiring people with mental illness than about almost any other group. Id. As one federal appeals court has found:

Americans with disabilities often faced barriers to joining and succeeding in the workforce . . . . includ[ing] attitudinal barriers resulting from unfounded stereotypes and prejudice. People with psychiatric disabilities have suffered as a result of such attitudinal barriers, with an employment rate dramatically lower than people without disabilities and far lower than people with other types of disabilities.

Karraker v. Rent-A-Center, Inc., 411 F.3d 831, 834 (7th Cir. 2005).

A 2019 American Psychiatric Association national poll found that due to workplace discrimination, only one in five employees was completely comfortable discussing mental health with coworkers and supervisors. Stigma, Prejudice and Discrimination Against People with Mental Illness.

Approximately 80% of people in the United States living with serious mental illness are unemployed. NAMI: Road to Recovery: Employment and Mental Illness. Only about 10% have full-time employment. Bazelon Center: Getting to Work. In a national probability sample, approximately one third of individuals with psychiatric disabilities reported being "fired, laid off, or told to resign from a job or they had been refused employment, a promotion, a transfer, or an opportunity for training." Disability Watch.

Discrimination on the basis of psychiatric disability appears to be rising. During the fiscal year 2016, the EEOC "resolved almost 5,000 charges of discrimination based on mental health conditions, obtaining approximately $20 million for individuals with mental health conditions who were unlawfully denied employment and reasonable accommodations." EEOC Issues Publication on the Rights of Job Applicants and Employees with Mental Health Conditions. This was a significant increase from about 2,700 such charges filed in fiscal year 1996. See Is the ADA Accommodating All? More recently, the number of mental health discrimination charges filed by workers rose to approximately 7,000 in fiscal year 2020, led by increases in claims filed by persons with anxiety and post-traumatic stress disorder (PTSD). See Rise in Mental Health Employment Bias Claims.

The increase in discrimination charges has occurred against the backdrop of increased news media coverage of mental illness emphasizing interpersonal violence highly disproportionate to actual rates of violence among people with psychiatric disabilities. Trends in News Media Coverage of Mental Illness in the United States: 1995–2014. Such coverage contributes to prejudice and discrimination against people with psychiatric disabilities.

For more information on discrimination, harassment, and retaliation, see Discrimination, Harassment, and Retaliation practice notes page.

Key Workplace Legal Protections for People with Psychiatric Disabilities

Individuals with mental illness are protected from employment discrimination primarily by two federal laws: the Americans with Disabilities Act (ADA) (Pub. L. No. 101-336, 104 Stat. 327 (July 26, 1990)) and the Rehabilitation Act of 1973 (Pub. L. No. 93-112, 87 Stat. 355 (Sept. 26, 1973)). Among the most significant protections of these laws are requirements concerning disability-related inquiries and reasonable accommodations.

Overview of the Americans with Disabilities Act's Employment Provisions

Congress enacted the ADA in 1990 to "assure equality of opportunity, full participation, independent living, and economic self-sufficiency" for individuals with disabilities. 42 U.S.C. § 12101(a)(7). Congress found that individuals with disabilities experience discrimination in areas such as employment, and receive fewer employment and other opportunities than people without disabilities. 42 U.S.C. § 12101(a)(3), (5). Title I of the ADA contains provisions relating to employment discrimination.

The ADA protects qualified individuals with a disability, defined as a physical or mental impairment that substantially limits one or more life activities, a record of such an impairment, or being regarded as having such an impairment. 42 U.S.C. § 12102. To be qualified, an employee or applicant must be able to perform the essential job functions of the employment position with or without reasonable accommodations. 42 U.S.C. § 12111(8).

Prohibited Discrimination

Title I of the ADA bars covered employers from discriminating against a qualified individual with a disability on the basis of that disability in the job application process, hiring, advancement, or discharge of employees as well as job training, compensation, or other terms of employment. 42 U.S.C. § 12112(a). Title I covers employers with 15 or more employees as well as employment agencies, labor organizations, and joint labor-management committees. 42 U.S.C. § 12111(2), (5).

Discrimination against a qualified individual with a disability may include, among other things:

  • Segregating or classifying job applicants or employees with disabilities in ways that limit their opportunities
  • Participating in discriminatory contracts or other employment arrangements
  • Using criteria or methods of administration that have the effect of discriminating or perpetuate the discrimination of others
  • Discriminating based on someone's association with a person with a disability
  • Not providing reasonable accommodations to job applicants or employees with disabilities
  • Using qualification standards, tests, or other employment criteria that tend to screen out people with disabilities and that are not job-related and consistent with business necessity
  • Failing to use employment tests in the most effective manner to ensure that the tests reflect the skills the tests are supposed to measure rather than reflecting an individual's disability

See 42 U.S.C. § 12112(b).

Note: As shown in the graph below, claims for accommodation under the ADA (Accommodation Cases) increased steadily from 2,398 in 2013 to 3,579 in 2019. Case filings dipped by 10% in 2020 and 2021 before rising again in 2022 to a level equivalent to the number of cases filed in 2019. The recent spike in 2022 may be explained, at least in part, by the increasing trend of mandating that employees return to the office.

Accommodation Cases Filed from 2013 to 2022

Source: Lex Machina®, Employment Litigation Report 2023. For more information on Lex Machina and to sign up for a live demo, click here.

For information on the definition of disability, see ADAAA Definition of Disability Chart.

Medical Examinations and Inquiries

Employers may not discriminate regarding medical examinations and inquiries. 42 U.S.C. § 12112(d).

  • Preemployment. Covered employers may not conduct medical examinations or inquiries likely to elicit information about whether a job applicant has a disability or the severity of a disability prior to giving an applicant a conditional job offer. The employer may inquire, however, as to whether the job applicant is able to perform job-related functions.
  • Employment entrance examination. Employers may require a medical examination or make medical inquiries after a conditional job offer has been made and before the employment duties start if all incoming employees are subject to the examination or inquiries and the information is treated separately and as a confidential medical record, unless specified otherwise in the statute.
  • Inquiries of employees. Employers may conduct medical examinations of employees or make inquiries likely to elicit information about a disability only if the examinations or inquiries are job-related and consistent with business necessity.
  • Exceptions for affirmative action programs and voluntary employee health programs. Employers may invite applicants to voluntarily self-identify as having a disability if part of a bona fide affirmative action program. Employers may also conduct voluntary medical examinations of employees as part of a voluntary workplace employee health program. EEOC: Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA.

For more information, see Disability-related and Genetic Information in Job Applications and Pre-employment Medical Examinations: Best Practices and Permissible Disability-Related Inquiries, Medical Exams, and Certifications: Key Considerations.

Overview of the Employment Discrimination and Affirmative Action Provisions of the Rehabilitation Act of 1973

The Rehabilitation Act of 1973 contains several provisions that prohibit disability-based discrimination in employment: Section 501, Section 503, and Section 504. Pub. L. No. 93-112; ODEP: Employment Rights: Who has Them and Who Enforces Them.

  • Section 501. Prohibits discrimination on the basis of disability in federal employment. Section 501 also requires federal agencies to serve as model employers of people with disabilities and to implement affirmative action program plans for the hiring, placement, and advancement of qualified individuals with disabilities. 29 U.S.C. § 791.
  • Section 503. Prohibits workplace discrimination on the basis of disability by federal contractors and requires contractors and subcontractors who have contracted with the federal government for $10,000 or more to take affirmative action to employ and advance the employment of qualified individuals with disabilities. 29 U.S.C. § 793.
  • Section 504. Prohibits recipients of federal financial assistance from discriminating against qualified individuals on the basis of disability for programs or activities in employment. 29 U.S.C. § 794. Section 504 uses the same standards as applied under Title I of the ADA for employment discrimination claims. 29 U.S.C. § 794(d). See DOL: Section 504.

Key Protections of the ADA and the Rehabilitation Act for Employees and Job Applicants with Psychiatric Disabilities

This section addresses key legal protections for applicants and workers with psychiatric disabilities.

Preemployment Inquiries and Inquiries of Employees

The protections of the ADA and the Rehabilitation Act concerning disclosure of disability-related information are particularly important in light of the pervasive workplace discrimination that individuals with psychiatric disabilities experience. EEOC Enforcement Guidance on the ADA and Psychiatric Disabilities (EEOC Psychiatric Disability Guidance); 29 C.F.R. § 1630.14. The employer's ability to ask disability-related questions and perform medical examinations differs depending on the stage of employment: pre-job offer, post-job offer, and during employment. See Disability-related and Genetic Information in Job Applications and Pre-employment Medical Examinations: Best Practices, Permissible Disability-Related Inquiries, Medical Exams, and Certifications: Key Considerations, and Interview Questions Checklist: Permissible and Impermissible Inquiries to Job Applicants. See also JAN: Pre-Offer, Disability-Related Questions: Dos and Don'ts. Employers must keep information from applicants and employees about a medical condition or history confidential. 29 C.F.R. § 1630.14.

Pre-job Offer

During the pre-job offer stage, consider the following issues:

  • Medical history. Employers may not ask questions on a job application about the applicant's history of treatment for mental illness, hospitalization, or the existence of mental illness.
  • Mental illness questions. Employers may not ask questions that are likely to elicit information about mental illness before making a job offer.
  • Disability-related questions. An employer may ask disability-related questions concerning the need for an accommodation before making an offer if the applicant asks for reasonable accommodation for the hiring process.
  • Reasonable accommodation. An employer may not ask if the applicant will need reasonable accommodation for the job unless the employer reasonably believes, before making the offer, that the applicant will need accommodation to perform the job functions.
    • ○ Non-visible vs. visible disability. For an individual with a non-visible disability, this may happen if the individual voluntarily discloses the disability or need for reasonable accommodation. For an individual with a visible disability, the employer may ask about accommodations if the need for an accommodation is obvious.

See Disability-related and Genetic Information in Job Applications and Pre-employment Medical Examinations: Best Practices and Permissible Disability-Related Inquiries, Medical Exams, and Certifications: Key Considerations. See also EEOC Psychiatric Disability Guidance.

Post-job Offer

During the post-job offer stage, consider the following issues:

During Employment

During employment, consider the following issues regarding inquiries of employees.

Reasonable Accommodations

The ADA and the Rehabilitation Act require covered employers to provide reasonable accommodations to afford equal opportunity. 29 C.F.R. § 1630.1; 29 C.F.R. § 1630.2. Reasonable accommodations are modifications or adjustments employers make to allow a qualified job applicant or employee with a disability to go through the application process, perform essential job functions in the work environment, and assure equal benefits and privileges of employment to qualified employees with a disability. 29 C.F.R. § 1630.2(o). Reasonable accommodations are required absent an undue hardship, meaning a significant difficulty or expense incurred by the covered entity. 29 C.F.R. § 1630.2(p).

For more information on accommodating a disability, see Accommodating a Disability under the Americans with Disabilities Act Checklist and Americans with Disabilities Act: Guidance for Employers.

For disability accommodation forms, see Disability Accommodations Policy (with Acknowledgment), Disability Accommodation Request (ADA), Disability Accommodation Request Resolution (ADA), and ADA Reasonable Accommodation Letter and Questionnaire to Healthcare Provider (with HIPAA Authorization).

Types of Reasonable Accommodations

Employers must determine reasonable accommodations on a case-by-case basis. The ADA provides a non-exhaustive list of reasonable accommodations that may be relevant to an employee with a psychiatric disability. 29 C.F.R. § 1630.2(o). These accommodations include:

  • Making facilities more accessible to and usable by individuals with disabilities
  • Job restructuring
  • Work schedule flexibility (such as part-time or modified schedules)
  • Reassignment to vacant position
  • Acquisition or modifications of equipment or devices
  • Adjustments of training, examinations, policies, or materials

The Job Accommodation Network (JAN) provides additional information on accommodations by limitation and by work-related function. See Accommodation and Compliance: Mental Health Conditions. For example, JAN recommends accommodations in the form of products, services, and strategies for an individual with strong anger and emotional responses.

Types of accommodations may include:

  • Apps for mental health
  • Simulated skylights and windows
  • Flexible scheduling
  • Counseling
  • Job coaches
  • Behavior modification techniques
  • Positive feedback
  • Support animal
  • Support person

See JAN: Control of Anger/Emotions Solutions.

In addition, JAN also lists a number of accommodation ideas for employees who have limitations in attentiveness/concentration, decreased stamina/fatigue, executive functioning deficits, challenges with managing time, memory loss, issues with organizing/planning/prioritizing, concerns with sleeping or staying awake, and low stress tolerance. See Accommodation and Compliance: Mental Health Conditions.

Mental health professionals may be able to make suggestions about particular accommodations and assist the employer and employee in communicating about the accommodation. See EEOC Psychiatric Disability Guidance. For instance, JAN has provided multiple resources with suggestions for how to assist employees with mental health disabilities during the COVID-19 pandemic. See, e.g., Mental Health and Telework Accommodation Solutions and Coronavirus, Stress, and Mental Health Conditions.

Requesting Reasonable Accommodations

The following may assist employers and employees when individuals make requests for reasonable accommodations:

  • Who can make a request for a reasonable accommodation? The employee, family member, friend, health professional, or other representative may request a reasonable accommodation on behalf of an individual with a psychiatric disability.
  • Oral or in writing. Requests can be made orally or in writing, and can be made in "plain English" without using the specific words "reasonable accommodation."
  • Related to medical condition. Requests must let the employer know that for a reason related to a medical condition, including a mental health condition, the employee needs an adjustment or change at work.
  • Timing. Requests can be made at any time during employment.
  • Documentation. The employer may ask for reasonable documentation about the employee's disability.
  • Interactive process. The request for an accommodation is usually the first step in an "interactive process" between the individual and the employer to determine whether a reasonable accommodation can be provided.
  • Employer responsibility. Ordinarily the person must request an accommodation, but the employer must initiate the interactive process without such a request where the employer:
    • ○ Knows that the employee has a disability
    • ○ Knows or should know that the employee is experiencing workplace problems due to the disability –and–
    • ○ Knows or should know that the disability prevents the person from requesting an accommodation
  • Requirements of Section 501. Section 501 of the Rehabilitation Act requires federal agencies, as part of affirmative action efforts, to adopt and make available to all job applicants and employees and on its website detailed written reasonable accommodation procedures that explain the process of requesting, identifying, and granting reasonable accommodations.

See Americans with Disabilities Act: Guidance for Employers, EEOC Psychiatric Disability Guidance; EEOC Reasonable Accommodation Guidance, and 29 C.F.R. § 1614.203(d)(3).

For disability accommodation request forms, see Disability Accommodation Request (ADA) and Disability Accommodation Request Resolution (ADA).

Family and Medical Leave Act (FMLA)

In addition to the right to reasonable accommodation under the ADA and the Rehabilitation Act, including work-leave, the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., may provide additional protections if a person needs to take time off from work due to a psychiatric disability—for example, due to a medication adjustment or following a crisis episode.

The FMLA, enforced by the Department of Labor (DOL), permits certain employees to take up to 12 weeks of unpaid leave in any 12 months for a serious health condition, or to care for a family member because of a serious health condition. The leave is job-protected and requires that group health benefits continue to be administered during the leave. 29 C.F.R. § 825.100.

For more information on the FMLA, see FMLA Leave: Guidance for Employers and Employees.

Employee Eligibility and Requirements

The FMLA allows employees to take medical leave when the employee cannot work due to a serious health condition as well as when an employee must care for an immediate family member with a serious health condition. A "serious health condition" is defined as an "illness, injury, impairment, or physical or mental condition" involving inpatient care or continuing treatment by a healthcare provider. 29 U.S.C. § 2611(11).

Individuals with psychiatric disabilities may qualify for leave under the FMLA. See EEOC: Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights. Mental health conditions are considered serious under the FMLA if they require either inpatient care, such as an overnight stay in a medical care facility, or continuing treatment by a health care provider. Conditions require continuing treatment include conditions that incapacitate an individual for more than three consecutive days and require either multiple appointments or a single appointment and follow-up care, as well as chronic conditions like anxiety or depression that can cause occasional periods of incapacitation and require treatment by a health care provider at least twice a year. See Fact Sheet #28O: Mental Health Conditions and the FMLA (May 2022). For examples and frequently asked questions about using FMLA for mental health conditions, see Frequently Asked Questions: Mental Health and the FMLA.

The FMLA does not apply to routine medical examinations or ordinary health conditions such as the common cold, upset stomach, or headaches unless complications arise. 29 C.F.R. § 825.113.

To be eligible for the FMLA, employees generally must have worked at least 12 months for the same employer. 29 C.F.R. § 825.102.

For more information, see FMLA Leave: Guidance for Employers and Employees — FMLA Leave: Employer Coverage, Employee Eligibility, and Qualifying Bases.

Certification of Serious Health Condition

Employers may require the employee to submit a medical certification generally within 15 days of their request. The certification's purpose is to support the employee's need for FMLA leave to care for their own serious health condition or leave to care for a covered family member with a serious health condition. The employee is responsible for paying for the cost of the certification and providing it to the employer. If the certification is incomplete, the employer must give the employee written notice stating what additional information is required to make the certification complete or sufficient. Certifications need not contain a diagnosis. See FMLA Leave: Guidance for Employers and Employees. See also Fact Sheet #28G: Certification of a Serious Health Condition under the FMLA; Fact Sheet #28O: Mental Health Conditions and the FMLA.

For a link to an annotated FMLA certification of healthcare provider for employee's serious health condition, see FMLA Certification of Health Care Provider for Employee's Serious Health Condition (Form WH-380-E) and FMLA Certification of Health Care Provider for Family Member's Serious Health Condition (Form WH-380-F).

For other key FMLA notices, see FMLA Notice of Eligibility and Rights & Responsibilities (Form WH-381) and FMLA Designation Notice (Form WH-382). For more information, see Family and Medical Leave Act Administration and Audit Checklist.

Employer Eligibility and Requirements

The FMLA applies to all public agencies, public and private elementary and secondary schools, and companies with more than 50 employees within 75 miles. See DOL: Family and Medical Leave (FMLA).

To meet the FMLA's requirements, the employer must display a poster prepared by the DOL summarizing the FMLA and telling employees how to file a complaint. Posters are available on the website of the DOL. See FMLA Poster. The employer also must provide employees with specific notices about the FMLA, including a general notice about FMLA and eligibility and rights. See FMLA: Forms; see also Fact Sheet #28D: Employer Notification Requirements under FMLA.

For more information, see FMLA Leave: Guidance for Employers and Employees — FMLA Leave: Employer Coverage, Employee Eligibility, and Qualifying Bases.

EEOC Lawsuits Enforcing the ADA and the Rehabilitation Act on Behalf of Individuals with Psychiatric Disabilities

The ADA and Rehabilitation Act prohibit discrimination in aspects of employment such as hiring, firing, and other terms or conditions of employment. Employers do not have to hire or keep an employee in a job position where they cannot perform the job duties, but to show that the employee is not qualified, the employer must have objective evidence that the person is unable to perform essential job functions, or that the person would create a direct threat to safety even with a reasonable accommodation. See EEOC: Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.

The following are examples of lawsuits the EEOC filed charging workplace discrimination on the basis of psychiatric disability:

  • EEOC v. G&A OutSourcing, Inc. In 2019, the EEOC filed a lawsuit charging G&A OutSourcing, Inc., a Houston-based company that provides human resources services to corporate clients, for violating the ADA by firing a new employee the day after the employee disclosed that she had mental health impairments. Specifically, the employee disclosed that she had major depressive disorder and attention deficit hyperactivity disorder to her supervisor on her first day of employment and was fired the following morning due to those conditions. See G&A Partners Sued by EEOC for Disability Discrimination.
  • EEOC v. Interconnect Cable Technology Corporation. In 2020, the EEOC filed a lawsuit against Interconnect Cable Technology Corporation (ICTC) for demoting and then discharging an employee of 20 years after the employee was hospitalized for mental illness. The employee had previously been promoted several times within the company. Soon after being hospitalized and diagnosed with major depressive disorder, her job duties were reduced. She was subsequently demoted and faced a cut in pay, then later fired. ICTC agreed to pay $35,000 and provide other relief to settle the lawsuit. See Interconnect Cable Technology Corporation Sued by EEOC for Disability Discrimination; EEOC: Interconnect Cable Technologies to Pay $35,000 to Settle EEOC Disability Discrimination Suit.
  • EEOC v. Ranew's Management Company. In 2021, the EEOC filed a lawsuit against Ranew's Management Company for firing an employee because of his depression. When the employee first informed the company of his diagnosis and requested to take three weeks off, the CEO told him to take as much time as he needed. However, when the employee tried to return to work six weeks later, presenting a release from his doctor, the CEO said he could not trust the employee to perform his job duties and instead fired him. Ranew's agreed to pay $250,000 and provide other relief to settle the lawsuit. See EEOC Sues Ranew's Management Company for Disability Discrimination and Ranew's Management Company to Pay $250,000 to Settle Disability Discrimination Lawsuit.
  • EEOC v. Hobby Lobby Stores, Inc. In 2022, the EEOC filed a lawsuit charging Hobby Lobby for violating the ADA by refusing to let an employee bring her fully trained service dog to work to assist with her symptoms caused by PTSD, anxiety, and depression. Hobby Lobby took the position that the dog could present a safety concern because a coworker or customer might be allergic or trip over the dog, even though customers were able to bring service dogs and other dogs to the store. The employee was terminated when she could not work without her service dog. See EEOC Sues Hobby Lobby for Disability Discrimination.

For additional EEOC lawsuits and settlements involving workers with psychiatric disabilities, see Health Delivery, Inc. To Pay $45,000 To Settle EEOC Disability Discrimination Suit, EEOC Settles Psychiatric Disability Bias Suit for Worker with Bipolar Disorder and Car Dealer to Pay $100,000 to Resolve EEOC Lawsuit Alleging Disability Discrimination. Also see Appendix: Key EEOC Cases Regarding Mental Health, below.

Filing an EEOC Discrimination Charge

If an applicant or employee believes their rights were violated, the person should contact the EEOC. Title I of the ADA requires that a person file a charge with the EEOC before later filing suit. If the person decides to file a charge, then the EEOC can investigate. A charge must be filed within 180 days of the alleged violation or 300 days if a state or local agency enforces a state or local employment discrimination law that also covers the employer. Employers may not retaliate against the person for contacting the EEOC or filing a charge of discrimination. See Filing an EEOC Charge Checklist. See also EEOC: Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights; EEOC: Time Limits for Filing A Charge.

For additional information on EEOC practice, see EEOC Enforcement of Anti-discrimination Laws: Key Considerations. For a video on drafting an EEOC position statement, see EEOC Position Statement Video.

Best Practices to Ensure Equitable Recruitment, Hiring, and Retention of Individuals with Psychiatric Disabilities

This section addresses best practices for employers in interacting with individuals with mental health issues.

Recruitment Efforts

While the law generally does not allow employers to solicit information about mental health conditions before making a job offer, there are ways to recruit without asking people to disclose a disability pre-offer, such as including mental health service systems (such as state or local mental health agencies and/or community-based service providers) and others among partners who collaborate in recruitment efforts.

Employers should ensure they recruit individuals with psychiatric disabilities by prioritizing hiring people with disabilities and by working with partners who can connect qualified applicants. See EEOC: Recruiting, Hiring, Retaining, and Promoting People with Disabilities. Employers should understand what they may and may not ask about an applicant's disability during the pre-job offer, post-job offer, and during employment. Employers should create lists of questions that are permissible under the ADA. See Disability-related and Genetic Information in Job Applications and Pre-employment Medical Examinations: Best Practices, Permissible Disability-Related Inquiries, Medical Exams, and Certifications: Key Considerations, Interview Questions Checklist: Permissible and Impermissible Inquiries to Job Applicants, and JAN: Pre-Offer, Disability-Related Questions: Dos and Don'ts. Federal agencies and federal contractors should understand their affirmative action obligations under Sections 501 and 503 of the Rehabilitation Act, and properly invite applicants to self-identify. See JAN: Disability Disclosure and Employment.

Employers should ensure that online application systems such as those with preemployment tests do not discriminate against candidates with disabilities. Employers should establish selection procedures that are job-related and are facilitated by managers who are knowledgeable about the procedures and employment discrimination laws. See EEOC Employment Tests and Selection Procedures. Employers using artificial intelligence and similar automated tools in hiring should be careful to avoid discriminatory processes. See The ADA and AI: Applicants and Employees and Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring.

For more information on screening and hiring, see Screening and Hiring Resource Kit.

Resources to Help Employers Hire People with Disabilities

The Department of Labor's Office of Disability Employment Policy (ODEP) supports initiatives to assist employers in hiring individuals with disabilities such as:

  • Employer Assistance and Resource Network on Disability Inclusion (EARN). EARN is a free resource to assist employers with education and strategies on recruiting, hiring, and advancement of people with disabilities. EARN provides resources including a list of websites for employers searching for candidates with disabilities and for job candidates with disabilities.
    • Job posting websites and recruitment resources listed include:
      • ■ AAPD Career Center
      • ■ abilityJOBS
      • ■ Ability JobFair
      • ■ AbilityLinks.org
      • ■ Association of University Centers on Disabilities (AUCD)
      • ■ Bender Consulting Services, Inc.
      • ■ Disabled Person, Inc.
      • ■ Diversity Jobs
      • ■ Getting Hired
      • ■ National Business & Disability Council (NBDC) at The Viscardi Center's Disability Employment Service (DES)
      • ■ OurAbility Connect, RecruitDisability.org
      • ■ WRP.gov

For the full list and description of each website, see EARN: Finding Candidates with Disabilities.

EARN also suggests that employers contact state, local, and community-based organizations such as American Jobs Centers (AJCs), Centers for Independent Living (CILs), the Disability and Veterans Community Resources Directory, Employment Networks (ENs), the Council of State Administrators of Vocational Rehabilitation / National Employment Team (NET), and Vocational Rehabilitation (VR) agencies to help find qualified workers with disabilities. See EARN: Finding Job Candidates with Disabilities.

See DOL: Hiring People with Disabilities (listing these initiatives and additional resources).

For information on ways to ensure people with disabilities are included in recruitment efforts such as by conducting targeted outreach, creating community linkages, posting job announcements in targeted places, and establishing an internship program, see EEOC: Recruiting, Hiring, Retaining, and Promoting People with Disabilities.

Avoiding Discriminatory Screening Processes

To screen applicants for hire and employees being considered for promotion, employers frequently use employment tests and selection procedures such as "cognitive tests, personality tests, medical examinations, credit checks, and criminal background checks." EEOC: Employment Tests and Selection Procedures.

Frequently, these tools may screen out and thus discriminate against people with mental illness. See Personality and Integrity Tests for Hiring and Promoting Employees. See also Alan M. Goldstein & Shoshanah D. Epstein, Personality Testing in Employment: Useful Business Tool or Civil Rights Violation, 24 Labor Lawyer 243 (2008); Julie Furr Youngman, The Use and Abuse of Pre-employment Personality Tests, 60 Business Horizons 261 (2017).

The ADA prohibits the use of employment tests or selection criteria that screen out or tends to screen out people with disabilities unless the test is job-related and consistent with business necessity. 42 U.S.C. § 12112(b)(6), (b)(5), (b)(7). Specifically, the use of artificial intelligence or computer-based tools to assess job applicants may be prohibited. See The ADA and AI: Applicants and Employees and Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring. Employers must ensure these tools do not disadvantage job applicants with disabilities. Importantly, tools that are marketed as 'bias-free' may still illegally screen out individuals with disabilities. To avoid this, employers should work to ensure that any algorithmic decision-making tools are as accessible as possible, that materials are provided in alternative formats as needed, and the tool does not disadvantage individuals with disabilities. Employers using these tools for hiring should also clearly indicate that reasonable accommodations are available, provide clear instructions for requesting accommodations, and be as transparent about the tool as possible so that applicants can determine whether they may need reasonable accommodations.

The EEOC differentiates between medical examinations, which the ADA does not allow before an applicant has received a conditional job offer, and other types of tests and procedures. While a medical examination "seeks information about an individual's physical or mental impairments or health" and can include "psychological tests that are designed to identify a mental disorder or impairment," psychological tests that "measure personality traits such as honesty, preferences, and habits" are generally not considered medical examinations. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examination of Employees under the ADA. See also Karraker v. Rent-A-Center, Inc., 411 F.3d 831 (7th Cir. 2005) (finding the employer's use of the Minnesota Multiphasic Personality Inventory (MMPI) test violated the ADA because it could be used to diagnose certain psychiatric disorders and therefore was a medical examination).

The EEOC lists employer best practices for testing and selection procedures such as ensuring tests are "properly validated for the positions and purposes for which they are used" and determining "whether there is an equally effective alternative selection procedure that has a less adverse impact" if the test screens out a protected group. See EEOC Employment Tests and Selection Procedures.

For additional information on disability-related questions, see Disability-related and Genetic Information in Job Applications and Pre-employment Medical Examinations: Best Practices, Permissible Disability-Related Inquiries, Medical Exams, and Certifications: Key Considerations, Interview Questions Checklist: Permissible and Impermissible Inquiries to Job Applicants,EEOC Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations and The ADA and AI: Applicants and Employees and Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring.

Retaining and Promoting Employees with Psychiatric Disabilities

Employers should keep in the mind the following best practices in connection to retaining and promoting employees with psychiatric disabilities:

By implementing these recommendations, employers will be better prepared to promote the employment of individuals with psychiatric disabilities and to prevent discrimination in the workplace based on mental health conditions.

Supported Employment

Supported employment is a particularly important tool to assist employers in recruiting, hiring, retaining, and promoting people with psychiatric disabilities, and has proven highly effective in meeting employers' needs. See Bazelon: Advances in Employment Policy and SAMHSA Supported Employment: The Evidence. Supported employment services include services such as:

  • Identify skill sets. Identifying individuals' skills, interests, and career goals, to help match the person with a suitable job.
  • Individualized job search. Helping individuals to conduct an individualized job search.
  • On-the-job assistance. Providing on-the-job assistance (e.g., counseling and interpersonal skills training) on a continuing basis to help people succeed in their jobs.
  • Accommodations. Working with individuals and their employers to identify needed accommodations.
  • Business needs. Developing relationships with employers to understand their business needs and match individuals with jobs.
  • Restructure job duties. Working with employers and individuals to identify ways in which jobs might be restructured or duties "carved" to facilitate employment of people with psychiatric disabilities while at the same time meeting employers' needs.
  • Benefits counseling. Providing benefits counseling to help individuals understand the impact of work on their public benefits and services, and ensure that individuals continue to have the healthcare coverage they need while working.

The most effective approach to supported employment for individuals with serious mental illness is known as Individual Placement and Support (IPS). See Bazelon: Getting to Work; Making the Case for IPS Supported Employment. Supported employment services are typically paid for through federal and state programs, including the Medicaid program, state vocational rehabilitation agencies, and other state dollars. Employers do not have to pay for these services but benefit from them.

Through supported employment programs, individuals with disabilities can contact their state mental health authority and local vocational rehabilitation office for resources to assist them in securing employment. SAMHSA: Directory of State Mental Health Authorities; JAN: State Vocational Rehabilitation Agencies. Also, the Council of State Administrators of Vocational Rehabilitation created the National Employment Team to connect businesses with qualified applicants in their local area. See EEOC: Recruiting, Hiring, Retaining, and Promoting People with Disabilities.

Federal agencies and federal contractors subject to affirmative action requirements under Sections 501 and 503 of the Rehabilitation Act are encouraged to hire individuals with disabilities who require supported employment. See Q&A: The EEOC's Final Rule on Affirmative Action for People with Disabilities in Federal Employment.

For additional information on supported employment, see SAMHSA Supported Employment: Training Frontline Staff and SAMHSA: Transforming Lives Through Supported Employment.

COVID-19 and Mental Health in the Workplace

The COVID-19 pandemic has changed the workplace in many ways that affect the mental health of workers. Social distancing policies, mandatory lockdowns, periods of isolation after possible exposure, anxiety about getting sick, losing one's job and income, and fear of what may happen in the future can all affect the mental health of workers. Job insecurity, long periods of isolation, and professional and personal uncertainty often have an adverse effect on mental health, especially in younger people and those with a higher educational background. COVID-19-Related Mental Health Effects in the Workplace: A Narrative Review. The global prevalence of anxiety and depression increased by 25% in the first year of the pandemic, and while people with preexisting mental disorders are not disproportionately vulnerable to COVID-19 infection, they are more likely to suffer hospitalization, severe illness, and death compared to those who do not have mental disorders. COVID-19 Pandemic Triggers 25% Increase in Prevalence of Anxiety and Depression Worldwide.

Mental health issues related to or exacerbated by the pandemic, such as anxiety, depression, post-traumatic stress disorder (PTSD), and sleep disorders are more likely to affect healthcare workers, (especially those on the frontline), migrant workers, and workers who have significant contact with the public. Anyone with depression or a mood disorder may struggle with the social isolation from staying at home, however. Additionally, some individuals with phobias or obsessive-compulsive disorder (OCD) may have increased symptoms related to the fear of contracting COVID-19. JAN: Coronavirus (COVID-19), Stress, and Mental Health Conditions.

The return to in-person work can also have negative effects on mental health as workers balance new or renewed social anxieties, concerns about safety, and stresses about managing family priorities and responsibilities. See Returning to work: Keys to a psychologically safer workplace.

Applicable Laws and Agency Guidance

The ADA, the Rehabilitation Act, and the FMLA continue to apply during the COVID-19 pandemic. See EEOC: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws; COVID-19 and the Family and Medical Leave Act: Questions and Answers.

Medical Exams and Disability-Related Inquiries

In particular, the ADA's and Rehabilitation Act's restrictions on medical examinations and disability-related inquiries still apply. Prior to making a conditional job offer, generally an employer cannot require an applicant to take a medical examination or answer disability-related questions. After an employee is hired, any disability-related inquiry or medical examination must be job-related and consistent with business necessity.

During the pandemic, an employer may ask workers if they have COVID-19, if they have been tested for COVID-19, if they are vaccinated, and if are experiencing symptoms associated with COVID-19, such as fever, chills, cough, shortness of breath, or sore throat. See Pandemic Flu/Influenza/Coronavirus (COVID-19): Key Employment Law Issues, Prevention, and Response. See also EEOC: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. An employer can also require a worker to take a COVID-19 test (but not a COVID-19 antibody test) to determine whether the worker may pose a direct threat to other workers. See Pandemic Flu/Influenza/Coronavirus (COVID-19): Key Employment Law Issues, Prevention, and Response. The EEOC has said that, in general, employers may follow recommendations from the federal Centers for Disease Control or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. EEOC: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws; CDC: Testing in Non-Healthcare Workplaces.

Reasonable Accommodations (including Telecommuting)

Employers also still have to make reasonable accommodations for employees with disabilities. The availability of vaccinations has diminished the number of requests for telework as a reasonable accommodation by employees with underlying health conditions associated with heightened vulnerability to COVID-19. Nevertheless, many individuals seek to continue working remotely for a variety of reasons related to COVID-19. Although an employer's agreement to remote telework during pandemic-related lockdowns does not mean that remote work will be a reasonable accommodation in all cases, the widespread use of telework during the pandemic suggests that telework may well be a reasonable accommodation in many circumstances. An employee's successful performance of the essential functions of the employee's job remotely during the pandemic suggests that allowing the employee to continue working remotely when in-person work resumes would be a reasonable accommodation if needed due to the employee's disability.

Where remote work is not a reasonable accommodation, an employer may still have to provide other accommodations. For example, an employer may have to shift an employee's location or install barriers (like plexiglass) to ensure distance from other individuals and/or a quiet space for work or reassign the employee to a vacant position for which the employee is qualified. See Pandemic Flu/Influenza/Coronavirus (COVID-19): Key Employment Law Issues, Prevention, and Response; see also EEOC: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws and JAN: Requesting and Negotiating Accommodations During the Pandemic.

The EEOC has recognized that workers with certain psychiatric disabilities, such as anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, may have more difficulty with COVID-19-related disruptions to daily life. EEOC: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. These workers may be entitled to a reasonable accommodation, like telework or a flexible work schedule. As with any accommodations request, employers may ask questions to determine whether the condition is a disability, discuss with the employee how the requested accommodation would assist them, and request reasonable medical documentation if needed.

FMLA Leave

An employee who is eligible for leave under the FMLA and is sick with COVID-19-related symptoms, or who is caring for a family member who is sick with COVID-19 symptoms, may be entitled to leave under the FMLA. The U.S. Department of Labor, which enforces the FMLA, has encouraged employers to provide flexible leave policies for their employees who are ill with COVID-19 or who have family members with COVID-19, so that they can stay home and minimize the spread of the pandemic. COVID-19 and the Family and Medical Leave Act: Questions and Answers.

Telemedicine visits are considered in-person visits for the purpose of establishing a serious health condition under the FMLA. These visits must include an examination, evaluation, or treatment by a health care provider; be permitted and accepted by state licensing authorities; and, generally, should be performed by video conference. COVID-19 and the Family and Medical Leave Act: Questions and Answers.

Workers with psychiatric disabilities that are related to or exacerbated by the pandemic, or who have family members with such disabilities, may be entitled to the FMLA's 12 weeks of annual, unpaid, job-protected leave.

Appendix: Key EEOC Cases Regarding Mental Health

The following section includes brief summaries key EEOC cases concerning psychiatric disabilities and other mental health issues.

Autism Spectrum

EEOC v. RCC Partners, LLC. In 2021, the EEOC filed a lawsuit against a Subway franchise for failing to accommodate and subsequently firing a worker with autism and ADHD. Although the sandwich shop knew that the worker would need accommodations like specific instructions and follow-up before he was hired, they failed to provide those accommodations and fired him after only four shifts. RCC Partners agreed to pay $30,000 and provide other relief to settle the lawsuit. See EEOC Sues Arizona Subway Franchise for Disability Discrimination and RCC Partners to Pay $30,000 to Settle EEOC Disability Discrimination Lawsuit.

EEOC v. JDKD Enterprises. In 2021, the EEOC filed a lawsuit against JDKD Enterprises, which operates McDonald's franchises in New Kersey, for firing a long-time employee with autism spectrum disorder. During the 37 years the employee had worked for various McDonald's, he had received numerous awards and accolades for his excellent job performance. JDKD fired the employee abruptly 2 months after assuming ownership of the restaurant where the employee had worked for the past ten years, despite his continued excellent job performance. See EEOC Sues JDKD Enterprises for Disability Discrimination.

Medication to Treat ADHD

EEOC v. International Paper. In 2022, the EEOC filed a lawsuit against International Paper, Co. for discriminating against an applicant based on his disability. International Paper revoked a conditional job offer when the applicant, who had previously disclosed that he was diagnosed with ADHD and was prescribed Adderall to treat it, did not pass a drug test because of the medication he took. Although the applicant offered to provide the phone number for his treating physician multiple times, International Paper did not change its decision. See EEOC Sues International Paper for Disability Discrimination.

EEOC v. Dragon Rig / The Modern Group. In 2021, the EEOC filed a lawsuit against Dragon Rig and Service, LLC, and The Modern Group, Ltd. for refusing to hire a job applicant because of his use of prescription medication to treat his anxiety and opioid addiction disabilities. The applicant had taken prescription medication to treat his anxiety, and had been in recovery for opioid addiction, throughout the 13 years he had worked as a welder prior to applying for a similar job at Dragon Rig. He disclosed his prescriptions and passed a drug test. However, the facility withdrew the employment offer after its facility officer stated that the medication could impair the applicant's ability to perform the job. The applicant was reportedly told, "If you get off that s***, I'll hire you." The EEOC stated that "it is illegal to base a hiring decision on unsubstantiated assumptions about a disabled worker's potential job performance while using prescribed medication." See Dragon Rig / The Modern Group Sued by EEOC for Disability Discrimination.

EEOC v. Hollingsworth Richards, LLC. In 2021, the EEOC filed a lawsuit against Hollingsworth Richards, LLC, for subjecting an employee to unlawful inquiries and unlawful medical examination. When she was first hired, the employee had disclosed that she was diagnosed with ADHD and took medication to treat it under the supervision of a healthcare provider. An operations manager told her to stop taking the medication and ordered her to take a drug test, firing her before receiving the results of the test. The company agreed to pay $100,000 and provide other relief to resolve the lawsuit. See Car Dealer to Pay $100,000 to Resolve EEOC Lawsuit Alleging Disability Discrimination.

Taking Leave

EEOC v. TrueBlue and PeopleReady. In 2021, the EEOC filed a lawsuit against TrueBlue, Inc, and its subsidiary, PeopleReady, for discriminating against an employee because of her psychiatric disability. When the employee requested to take leave due to her disability, TrueBlue denied the request and fired her when she was medically cleared to work. The lawsuit also alleged that harmful and disparaging workplace comments were made about the employee. TrueBlue and PeopleReady agreed to pay $125,000 and provide other relief to settle the lawsuit. See EEOC Sues TrueBlue, Inc., for Disability Discrimination TrueBlue and PeopleReady to Pay $125,000 to Settle EEOC Disability Discrimination and Retaliation Suit.

EEOC v. Heritage Charity Auction & Awards, Inc. In 2020, the EEOC filed a lawsuit against Heritage Charity Auction & Awards, Inc, for firing an employee after she disclosed that she had a mental health disability and might need an accommodation. Although the employee explained that her disabilities did not affect her ability to perform her job, Heritage made her leave work immediately and told her it required documentation. When she provided this documentation, the company refused to provide accommodations, filled her position, and fired her. Heritage agreed to pay $19,000 and provide other relief to settle the lawsuit. See Heritage Charity Auctions & Awards Settles EEOC Disability Discrimination Suit.

Scope of Reasonable Accommodation

EEOC v. Kaiser Foundation Health Plan of Georgia. In 2019, the EEOC filed a lawsuit against Kaiser Foundation Health Plan of Georgia for denying an employee's reasonable request for accommodation. Kaiser denied an employee's request to use one of the available non-revolving doors to access her workplace because her disability made using the revolving doors traumatic. When the case went to trial, the court held that a reasonable accommodation under the ADA need not relate to the essential function of the job, but could also include accommodations to access the workplace and enjoy the same benefits and privileges of the job that other employees enjoy. Kaiser agreed to pay $130,000 to settle the lawsuit. See Kaiser Foundation Health Plan of Georgia Sued by EEOC for Disability Discrimination and Kaiser Foundation Health Plan of Georgia to Pay $130,000 to Settle EEOC Disability Suit.

Service Dogs

EEOC v. Hobby Lobby Stores, Inc. In 2022, the EEOC filed a lawsuit charging Hobby Lobby for violating the ADA by refusing to let an employee bring her fully trained service dog to work to assist with her symptoms caused by PTSD, anxiety, and depression. Hobby Lobby's HR representative argued that the dog could present a safety concern because a coworker or customer might be allergic or trip over the dog, even though customers were able to bring service dogs and other dogs to the store. The employee was terminated when she could not work without her service dog. See EEOC Sues Hobby Lobby for Disability Discrimination.

Medication for Opioid Addiction

EEOC v. Professional Transportation, Inc. In 2020, the EEOC filed a lawsuit charging Professional Transportation, Inc (PTI) for violating the ADA by withdrawing a job offer to an applicant based solely on its own research into the side effects of a medication the applicant was taking. In advance of her drug test, the applicant informed PTI that she took Suboxone treatment but the medication did not affect her ability to do the job she was applying for. A PTI official looked up public information on possible side effects and withdrew the job offer without asking the applicant whether she actually experienced any side effects. PTI agreed to pay $60,000 and provide other relief to settle the lawsuit. See EEOC Sues Professional Transportation for Disability Discrimination and Professional Transportation, Inc. to Pay $60,000 to Settle EEOC Disability Discrimination Suit.

We want to thank Jennifer Mathis (formerly Director of Policy & Legal Advocacy at Bazelon Center for Mental Health Law and currently Deputy Assistant Attorney General at the U.S. Department of Justice's Civil Rights Division) for her excellent work on the original version of this practice note. We also thank Katelyn Hefter (Bazelon Summer Law Clerk) for her superb updates to this practice note.


Current as of: 07/20/2023