June 3, 2019

Picture it: Sicily, 1922. No wait, sorry. Wrong post! Picture it. You are the HR manager and you’ve noticed lately that one of your employees seems to be down, unusually sad, has changed their eating habits or just seems to be generally suffering from “the blues”. Are you able to approach this employee to find out what’s been going on? Probably not, as the EEOC has said that employees may keep information about their medical conditions private.  There are, however, exceptions to this rule.  Employers may ask questions about mental health if an employee asks for a reasonable accommodation, if you made a conditional offer of employment and ask all applicants for the same medical information, if your company is governed by an affirmative action policy and you are tracking disability status for all, or there is evidence that the employee may not be able to perform the functions of their job or may be a safety risk. Outside of these four exceptions, an employer should not inquire after an employee’s mental wellness. If you have questions about this or want help analyzing a current situation you are experiencing with an employee, contact one of our attorneys at myHRcounsel for expert guidance. 

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