If you’ve been paying attention to happenings in the security clearance world – or if you’ve simply completed a periodic review after 2016 – you may have noticed that the mental health portion of the SF-86 was completely revamped that year.
Gone is the invasive and longstanding question that gave many an applicant serious anxiety: “Have you’ve seen any psychologist, psychiatrist, or other mental health professional in the last seven years” (subject to a few specific exceptions)? That has now been replaced with a number of much more narrowly-tailored questions – like whether an applicant has been hospitalized for a mental health condition, declared incompetent by a court or administrative agency, or possesses one of a few enumerated (and significantly less common) conditions. The result is that most people with mental health conditions can now check “no” to pertinent questions, which typically ends the inquiry about mental health history.
Surprisingly, though, some federal agency and cleared contractor security officials – the people who are supposed to be paying closest attention to this stuff – still haven’t gotten the memo. Without naming and shaming any particular employer, I can say that my office continues to see outdated mental health questions being used with some regularity on agency or company-drafted clearance “pre-screening questionnaires”.
This can be fraught with litigation danger for private employers. It also presents job applicants with a real conundrum: list information that is responsive to the question but no longer required by the SF-86, thereby potentially risking the job offer and their privacy rights, or not disclose the information and potentially be accused of lying if it is subsequently discovered?
When it comes to federal government forms or questions posed verbally by a federal government official or background investigator, lying is a federal crime. But applicants are entitled to simply refuse to answer a question altogether in the security clearance process. Doing so is not something I typically recommend – it can be construed as non-cooperation and result in a security clearance denial or revocation – but there are exceptions, most often when responding would incriminate the applicant.
This situation is one of those exceptions, albeit for a different reason. Here, the best way to thread the needle may be simply to point out that the question is no longer relevant under current security guidelines and that the employer or security official is evidently working off an outdated form. That may not endear you to the other party, but its a fair and accurate point in most cases.
Just keep in mind that a vindictive employer may decide you’re not worth the trouble and find an excuse not to move forward with the hiring or clearance process. Applicants should also be aware that there are some unusual situations, mostly in the intelligence community or certain military occupational specialties, where additional mental health screening beyond the SF-86 is required. Those circumstances, along with situations where questions have arisen about mental health based on information developed during a background investigation, may demand greater applicant transparency and flexibility.
This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied. Laws and government policies are subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation.
