Article

OCD at Work: Your ADA Rights to Accommodation, Schedules, and Privacy

How the ADA covers obsessive-compulsive disorder at work, including time-consuming symptoms, accommodations, attendance rules, privacy, and deadlines.

8 min read

OCD Should Easily Qualify as a Disability

Title I of the Americans with Disabilities Act applies to private employers with 15 or more employees for 20 or more weeks in the current or preceding calendar year and to state and local government employers; federal workers are covered through the Rehabilitation Act, and many state laws reach smaller employers. The National Institute of Mental Health describes obsessive-compulsive disorder as a disorder marked by uncontrollable and recurring thoughts (obsessions), repetitive and excessive behaviors (compulsions), or both. Under 29 CFR 1630.2(j)(3)(iii), it should easily be concluded that obsessive compulsive disorder substantially limits brain function, and the EEOC's guidance for workers with mental health conditions lists OCD among the conditions that should easily qualify. The ADA protects you from being fired, refused a job or promotion, or forced onto leave simply because you have the condition.

Time-Consuming Symptoms and Treated Symptoms Still Count

MedlinePlus explains that compulsions such as excessive cleaning or handwashing, repeatedly checking things, counting, or arranging objects are done to reduce anxiety, and that symptoms are usually considered OCD when, among other things, they take at least an hour a day and cause significant problems in daily life. The EEOC says a condition does not need to be permanent or severe to be substantially limiting and may qualify by making activities more difficult, uncomfortable, or time-consuming than they are for most people. Under 29 CFR 1630.2(j)(4)(ii), the difficulty, effort, or time needed to perform a major life activity, and the burdens of following a treatment regimen, may be considered. Under 42 U.S.C. Section 12102(4)(D) and (E), an impairment that is episodic or in remission counts if it would be substantially limiting when active, and the helpful effects of mitigating measures such as medication are not considered. You do not need to stop treatment to get an accommodation.

Accommodations to Ask For

Under 42 U.S.C. Section 12111(9), reasonable accommodation may include job restructuring, part-time or modified work schedules, and reassignment to a vacant position. The EEOC lists examples for mental health conditions such as altered break and work schedules, including scheduling work around therapy appointments, quiet office space or devices that create a quiet work environment, written instructions from a supervisor who usually does not provide them, specific shift assignments, and permission to work from home. MedlinePlus notes that the main treatments for OCD are cognitive behavioral therapy, including exposure and response prevention, and medicines, so a schedule that leaves room for regular therapy sessions is a common request. You may ask in plain language, you do not need a specific accommodation in mind, and if more than one would work the employer may choose which to provide. An employer need not provide an accommodation that would impose an undue hardship, and it cannot charge you for the cost of one it provides.

Schedules, Lateness, and Attendance Rules

If symptoms make mornings or transitions take longer, the EEOC says an employer may have to modify its attendance policies as a reasonable accommodation, absent undue hardship. Its examples include letting an employee use accrued paid leave or unpaid leave, adjusting arrival or departure times, such as a 10 a.m. to 6 p.m. schedule instead of the usual 9 a.m. to 5 p.m., and providing periodic breaks. The same guidance says an employer does not have to exempt anyone completely from time and attendance requirements, grant open-ended schedules, or accept irregular, unreliable attendance, and generally does not have to accommodate repeated tardiness or absences that happen often, over a long period, and often without advance notice. A specific, predictable adjustment requested in advance is more likely to be workable than a request to arrive whenever symptoms allow.

Ask Before Performance or Conduct Problems

The EEOC says 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, and it does not have to rescind discipline, including a termination or an evaluation, warranted by poor performance or misconduct. Its guidance on performance and conduct standards says employees should not assume an employer knows an accommodation is needed to address a conduct issue merely because it knows about the disability. Ideally, the EEOC says, a request should come before performance problems arise, or at least before they become too serious. If you can foresee that checking, rereading, or other symptoms could slow your work or affect deadlines, ask for an accommodation early and in writing.

What You Have to Disclose and What Stays Private

The EEOC says an employer may ask medical questions only when you request an accommodation, after a job offer but before work begins if everyone entering the job category is asked, for voluntary affirmative action tracking, or on the job when there is objective evidence that you may be unable to do the job or may pose a safety risk because of your condition. When you ask for an accommodation, the employer may ask you to describe your condition generally and how it affects your work, and may request a letter from your health care provider. If you do not want the employer to know your specific diagnosis, the EEOC says documentation that describes your condition more generally, for example as an anxiety disorder, may be enough. Any medical information you share must be kept confidential, even from coworkers.

Leave and the FMLA

If you cannot perform all the essential functions of your job to normal standards and have no paid leave available, the EEOC says unpaid leave may be a reasonable accommodation when it will help you get to a point where you can perform them, and reassignment to an available job you can do may be an option if you are permanently unable to do your regular job. You may also qualify for leave under the Family and Medical Leave Act; under 29 CFR 825.110, an eligible employee has worked for the employer for at least 12 months, has at least 1,250 hours of service in the 12 months before leave starts, and works at a location where the employer has at least 50 employees within 75 miles. Keep copies of leave requests, provider notes, and any return-to-work conditions the employer sets.

Myths, Stereotypes, and Harassment

The EEOC says an employer cannot rely on myths or stereotypes about a mental health condition when deciding whether you can perform a job or whether you pose a safety risk. Before rejecting you for a job because of your condition, it must have objective evidence that you cannot perform the job duties, or that you would create a significant risk of substantial harm to yourself or others, even with a reasonable accommodation. Harassment based on a disability is not allowed under the ADA. Tell your employer about harassment and follow its reporting procedures if there are any; once you report it, the EEOC says your employer is legally required to take action to prevent it from happening again. Write down dates, what was said or done, and who saw it.

Retaliation and Deadlines

Under 42 U.S.C. Section 12203, an employer may not retaliate against you for opposing disability discrimination or for making a charge, testifying, assisting, or participating in an ADA investigation, proceeding, or hearing, and it may not coerce, intimidate, threaten, or interfere with you for exercising ADA rights. The EEOC says your employer also cannot fire you or refuse to hire or promote you because you asked for or need a reasonable accommodation. A charge with the EEOC generally must be filed within 180 calendar days of the discriminatory act, extended to 300 days where a state or local agency enforces a law prohibiting the same kind of discrimination; federal employees generally must contact an agency EEO counselor within 45 days. Keep copies of accommodation requests and replies, schedule agreements, performance reviews, and warnings.

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