When you’re hiring new employees, it’s crucial to understand the laws surrounding disability disclosure, why employees choose to disclose, and what the benefits are for both the employer and employee. But how does disability disclosure impact employees who work remotely?
What does the law say about employees disclosing disabilities?
Title I of the Americans with Disabilities Act (ADA) addresses employment-related protections for persons with disabilities. More specifically, Title I prohibits "private employers, State and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment."
So when may an employer require disclosure?
During the pre-employment phase, employers may not request any disability-related information or require medical examinations. At this stage, employers may not require a candidate to discuss past medical history, prescription medications, or related information. However, employers are required to provide a method for candidates to disclose and request a reasonable accommodation.
Once a conditional offer has been made, employers may require that candidates successfully meet the reasonable and legitimate job-related physical and medical requirements of the job. For example, an eye exam for a bus driver is appropriate to ensure the candidate can perform the essential functions of the job, as an inability to do so without accommodation could represent a safety issue.
However, it’s important to note that, unless there is a direct threat to health or safety, a request for accommodation by the employee, or the employer has a reasonable basis to believe the employee is not qualified to do the job, employees don’t have to disclose their disability to work for you.
Why do employees disclose disabilities?
One of the primary reasons an employee chooses to disclose their disability is to access assistive technology, standing desks, or other equipment or support through the reasonable accommodation process - in which disclosure may not be optional to properly accommodate.
Candidates and employees may also disclose to ensure they can access all the benefits of employment, such as wellness programs and access to employer-provided benefits and memberships. For example, an employer-provided health and wellness program provides employees access to 5 hours a month of telehealth counseling and smoke cessation therapy; a remote employee who has hearing loss may request that those appointments are offered in-person or that live captioning is provided for scheduled appointments.
Many employees choose not to disclose their disability for several reasons, including:
- Feeling like it isn’t necessary
- Embarrassment or anxiety
- Not wanting to be treated differently
- Not needing any special requirements to do their job
- The disability is visible (e.g., it’s reasonably self-explanatory if someone uses a wheelchair, for example)
- The disability being invisible (e.g., mental health or a hearing loss)
- Don’t see any benefit to disclosing their disability
- Fears that their employer will view them differently or hold them back when it comes to career advancement
Sometimes an employee will decide to disclose their disability freely for no other reason than to let you know. This is useful if your employee ever needs time off or some other form of support.
How your employees disclosing disabilities benefits you
If your employees do disclose, there are plenty of benefits for you as an employer, such as:
- Increased job satisfaction
- Meeting your compliance goals
- Staff who perform better
- Improved punctuality
- Happier, more confident staff
When employees are encouraged to disclose, it creates an open and collaborative culture in which reasonable accommodations can be managed and expedited, and disability initiatives can be measured and improved. Ensuring employment programs are robust for persons with disabilities will improve company morale and compliance, and foster an inclusive environment.
To encourage staff to keep you informed, employers should consider creating safe spaces in which employees can speak with their managers, providing adequate notice of ADA-related protections and company policies in conspicuous locations throughout the workplace - including in online workspaces, and running regular diversity surveys and training.
Remote working and disclosure
You can still offer disclosure options to employees with disabilities via remote working. Ensure your data protection software is up-to-date and offer your employees the chance to discuss their disability in confidence. You can arrange a meeting via video call, phone call, instant messaging, or via email.
It also helps to clarify to all your staff that if they have a disability and need accommodation, they are encouraged to address those needs with you. It is recommended to do this on a regular basis. Compliance programs that start off strong but are not managed tend to run out of steam and employees are left wondering if the culture still supports their needs. The company's commitment to accessibility should be discussed regularly and managed as an ongoing and continuously improving effort.
However you handle disability disclosure as an employer, remember to monitor requirements and offer alternative ways for your employees to disclose.
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