The question on the form — "Have you ever been treated for a mental health condition?" — is one California law forbids before an offer is made. The rule is in the statute, in the regulations, and in federal law, and each says it slightly differently.
The short answer: not before an offer. It is an unlawful employment practice "for any employer or employment agency to require any medical or psychological examination of an applicant, to make any medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition."¹ The employer "may inquire into the ability of an applicant to perform job-related functions and may respond to an applicant's request for reasonable accommodation" — and that is all.¹ After an offer, the employer "may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry."¹ Once you are employed, the same prohibition applies except for examinations or inquiries the employer "can show to be job related and consistent with business necessity," and voluntary examinations that are part of an employee health program.¹ Federal law says the same in its own words: an employer "shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability."²
Three stages, three rules
1. Before an offer. The regulation restates the ban: "It is unlawful for an employer or other covered entity to conduct a medical or psychological examination or inquiries of an applicant before an offer of employment is extended to that applicant," and "a medical or psychological examination includes a procedure or test that seeks information about an individual's physical or mental conditions or health but does not include testing for current illegal drug use."³ Questions about your ability "to perform job-related functions" are allowed.¹ ² "Have you ever taken medication for depression?" is not.
2. After an offer, before you start. The employer "may condition a bona fide offer of employment on the results of a medical or psychological examination or inquiries conducted prior to the employee's entrance on duty in order to determine fitness for the job in question," provided that "all entering employees in similar positions are subjected to such an examination," that where the results "would result in disqualification, an applicant or employee may submit independent medical opinions for consideration before a final determination on disqualification is made," and that "the results are to be maintained on separate forms and shall be accorded confidentiality as medical records."³ The employer "may withdraw an offer of employment based on the results … only if it is determined that the applicant is unable to perform the essential duties of the job with or without reasonable accommodation, or that the applicant with or without reasonable accommodation would endanger the health or safety of the applicant or of others."³
3. On the job. The employer "may make disability-related inquiries, including fitness for duty exams, and require medical examinations of employees so long as the inquiries are both job-related and consistent with business necessity."³ It "may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program."¹ Whatever it learns must be kept "on separate forms, and in medical files separate from the employee's personnel file," and confidential.⁴ Can my employer make me see a psychologist? →
What "mental disability" means here
The protection is broad. "Mental disability" includes "having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity."⁵ "Limits" means "makes the achievement of the major life activity difficult," and is "determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations."⁵ It also includes "having a record or history of a mental or psychological disorder or condition" known to the employer, and "being regarded or treated by the employer … as having, or having had, any mental condition that makes achievement of a major life activity difficult."⁵ The regulation names "chronic or episodic conditions such as clinical depression, bipolar disorder, post-traumatic stress disorder, and obsessive compulsive disorder."⁶ Excluded: "sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs,"⁵ and "conditions that are mild, which do not limit a major life activity."⁶
Because the definition covers a record or history, an employer that asks about past treatment and acts on the answer is asking about a protected characteristic. Should I tell my employer I have ADHD? →
The duty on the other side
If you do disclose — because you need something — the employer must respond. It is unlawful "to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee,"¹ and "to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation."¹ The employer's permitted question to an applicant expressly includes responding to such a request.¹ Workplace accommodations for mental health →
What to do
- On an application that asks about mental health before an offer: the inquiry itself is the unlawful practice, whether or not you answer.¹ Leaving a required field blank may get the application treated as incomplete; a neutral "prefer not to answer," and a copy of the form kept, preserves the record.
- At a post-offer exam: ask whether every entering employee in the classification takes it;¹ ³ if you are disqualified, you may submit "independent medical opinions" before the decision is final.³
- If the offer is withdrawn: the only lawful grounds are inability "to perform the essential duties of the job with or without reasonable accommodation" or a determination that you "would endanger the health or safety" of yourself or others.³ You can ask for the reason in writing — nothing in the statute or regulation requires the employer to give one — and you may submit "independent medical opinions" before the disqualification is final.³
- To complain: a complaint to the Civil Rights Department "shall not be filed after the expiration of three years from the date upon which the unlawful practice … occurred."⁷
Worked example
A warehouse applicant is handed a pre-offer questionnaire with "List any mental health conditions you have been treated for in the last five years." That is "an inquiry whether an applicant has a mental disability," unlawful before an offer under state law¹ ³ and federal law.² She leaves it blank and is offered the job. The employer then requires a fitness examination that every new picker takes;¹ ³ the physician notes her PTSD and clears her. Her employer keeps the results on separate forms, confidential as medical records.³ Six months later, when she asks for a schedule change to attend therapy, the employer must engage in the interactive process¹ — and may at that point require "reasonable medical documentation," but "shall not ask the applicant or employee about the underlying medical cause of the disability."⁴
Q&A
Q: Can they ask if I have ever been hospitalized for a psychiatric reason? A: Not before an offer; that is "an inquiry regarding the nature or severity of a … mental disability."¹ After an offer, only as part of an examination or inquiry that is job related and applied to everyone in the classification.¹
Q: Can they ask if I can handle stress? A: Generally yes, if it is framed as a job demand — "this job involves tight deadlines; can you meet them?" — because employers "may inquire into the ability of an applicant to perform job-related functions."¹ ² A question about whether you have a condition that affects how you handle stress is a disability inquiry and is not allowed before an offer.¹
Q: What about a security clearance or a police job? A: Section 12940's opening words except practices "based upon applicable security regulations established by the United States or the State of California,"¹ and post-offer psychological examinations that are job related, consistent with business necessity, and applied to all entering officers in the classification fit the post-offer rule.¹ Therapy and security clearance →
Q: Does the ADA add anything? A: It requires post-offer results to be "collected and maintained on separate forms and in separate medical files" and "treated as a confidential medical record," with supervisors told only of necessary restrictions and accommodations.² California's rules are similar: post-offer results "are to be maintained on separate forms and shall be accorded confidentiality as medical records,"³ and information about employees is kept confidential with the same three exceptions.⁴
Our therapist directory: See its current status →
If a past job ended because of the illness: Fired for my mental illness. Can I get unemployment? →
Licensing boards are a separate question: Can my licensing board act on mental illness? →
Sources
- Cal. Government Code §12940 — lead-in, "It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California"; (a) "For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability …"; (e)(1) as quoted; (e)(2) "Notwithstanding paragraph (1), an employer or employment agency may inquire into the ability of an applicant to perform job-related functions and may respond to an applicant's request for reasonable accommodation"; (e)(3) as quoted; (f)(1) the same prohibition for employees; (f)(2) "an employer or employment agency may require any examinations or inquiries that it can show to be job related and consistent with business necessity. An employer or employment agency may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite"; (m)(1) "For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee"; (n) "to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition" — california.public.law.
- 42 U.S.C. §12112(d) — (2)(A) "Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability"; (2)(B) "A covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions"; (3) the employment entrance examination, "if— (A) all entering employees are subjected to such an examination regardless of disability; (B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that— (i) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations"; (4)(A) for employees, "unless such examination or inquiry is shown to be job-related and consistent with business necessity" — law.cornell.edu.
- 2 Cal. Code Regs. §11071 — (a) "It is unlawful for an employer or other covered entity to conduct a medical or psychological examination or inquiries of an applicant before an offer of employment is extended to that applicant. A medical or psychological examination includes a procedure or test that seeks information about an individual's physical or mental conditions or health but does not include testing for current illegal drug use"; (b) "An employer or other covered entity may condition a bona fide offer of employment on the results of a medical or psychological examination or inquiries conducted prior to the employee's entrance on duty in order to determine fitness for the job in question," provided that (1) "All entering employees in similar positions are subjected to such an examination," (2) "Where the results of such medical or psychological examination would result in disqualification, an applicant or employee may submit independent medical opinions for consideration before a final determination on disqualification is made," (3) "The results are to be maintained on separate forms and shall be accorded confidentiality as medical records"; (c) "An employer or other covered entity may withdraw an offer of employment based on the results of a medical or psychological examination or inquiries only if it is determined that the applicant is unable to perform the essential duties of the job with or without reasonable accommodation …"; (d)(1) "An employer or other covered entity may make disability-related inquiries, including fitness for duty exams, and require medical examinations of employees so long as the inquiries are both job-related and consistent with business necessity"; (d)(4) confidentiality "as set forth at section 11069(g)" — law.cornell.edu.
- 2 Cal. Code Regs. §11069 — (c)(2) the employer "may require the applicant or employee to provide such reasonable medical documentation"; (c)(3) "it shall not ask the applicant or employee about the underlying medical cause of the disability, but may require medical information, as set forth in section 11071"; (g) "Medical information and/or records obtained during the interactive process shall be maintained on separate forms, and in medical files separate from the employee's personnel file, and shall be kept confidential, except that" supervisors may be told of work restrictions and accommodations, first aid and safety personnel of conditions that may need emergency treatment, and government officials investigating compliance — law.cornell.edu.
- Cal. Government Code §12926(j) — "(1) Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity"; (1)(A) "'Limits' shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity"; (1)(B) "A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult"; (1)(C) "'Major life activities' shall be broadly construed and shall include physical, mental, and social activities and working"; (3) "Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part"; (4) "Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult"; and "'Mental disability' does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs" — california.public.law.
- 2 Cal. Code Regs. §11065(d) — (d)(1) "'Mental disability' includes, but is not limited to, emotional or mental illness, intellectual or cognitive disability (formerly referred to as 'mental retardation'), organic brain syndrome, or specific learning disabilities, autism spectrum disorders, schizophrenia, and chronic or episodic conditions such as clinical depression, bipolar disorder, post-traumatic stress disorder, and obsessive compulsive disorder"; (d)(9)(B) "conditions that are mild, which do not limit a major life activity, as determined on a case-by-case basis" — law.cornell.edu.
- Cal. Government Code §12960(e)(5) — a complaint alleging a violation of Article 1 (commencing with Section 12940) "shall not be filed after the expiration of three years from the date upon which the unlawful practice or refusal to cooperate occurred" — california.public.law.
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