The Disclosure Dilemma: What the Law Says (Part 1)

by Ann Deschamps, Ed.D

Adapted from ADA in Focus, Spring 1999

One positive result of the passage of the Americans with Disabilities Act (ADA) is a disability-sensitive workplace. Even in today's enlightened workplace, however, people with hidden disabilities often face a myriad of issues when considering whether or not to disclose disability. Anticipating the consequences of disclosure brings uncertainty for a person with a disability.

What is a Hidden Disability?

A hidden disability is a non-apparent disability that substantially limits one or more major life activities. Some examples include: psychiatric disabilities learning disabilities diabetes alcoholism epilepsy head injuries

A person with a hidden disability, however, such as a learning disability, psychiatric disability, or other non-apparent condition faces significant uncertainty when deciding to disclose. Questions arise such as: What will my employer's reaction be? How can I explain my disability in a way that they will understand? Will my employer find a way to fire me because they don't want to deal with my disability? Will other employees find out? How will my decision affect the quality of my professional life, including my ability to advance? When is the best time to tell my employer?

It quickly becomes clear that there are intangible issues involved that the ADA does not address.

What the Law Says?

Under the Americans with Disabilities Act, the employer is required to provide reasonable accommodations for a person with a known disability. Therefore a person with a hidden disability must disclose their disability in order to request a reasonable accommodation. This makes sense; certainly employers can only accommodate disabilities that they are aware of.

Under the employment provisions of the ADA, a qualified employee with a disability is required to tell his employer that he has a disability if the employee needs a reasonable accommodation. If the disability is not obvious and the employee has not already disclosed, the employer can request the employee provide reasonable documentation to verify disability and the need for the accommodation.

Reasonable documentation means that the employer may require only enough information about the disability-related work limitations to support the need for accommodation. This documentation can be provided by an appropriate doctor, psychologist, nurse, physical therapist, occupational therapist, or rehabilitation professional.

Confidentiality

Additionally, the employer has an obligation to keep all medical information, including documentation of disability, confidential and separate from the individual's general personnel file except in certain limited situations. These situations include: Supervisors or managers may be told about necessary restrictions on the work duties of an employee and about necessary accommodations; and,

First aid and safety personnel may be told if the disability might require emergency treatment.

Once appropriate documentation has been secured, the employer and employee enter into the interactive process to determine the appropriate reasonable accommodation and the specifics of how it will be provided.

For more information contact: the ADA Information Center at (800) 949-4232 (v/tty).

*Reprinted from the Spring 1999 Newsletter Edition