When Things Aren’t as They Seem (Non-Obvious Disability and Employment)

Katie, a potential employee, interviews with your company.  She is well qualified to perform the essential functions of the job for which she has applied.  The new employee is a wheelchair user; therefore, you recognize that some reasonable accommodations should made to ensure equality in the work environment.  You gladly work with the new employee, as you would any employee, because you want her to be successful in her position.  What about employees or potential employees who may have a non-obvious disability?  According to the Census Bureau’s Survey of Income and Program Participation, only 26% of people who have a significant disability that limits one or more major life areas use a mobility device, a common indicator of disability.  Use of mobility equipment alone cannot be a predictor of disability.

As Employers, we must be mindful of the employee who may have a non-obvious disability.  According to the National Alliance on Mental Illness, one in five people in the United States will experience mental illness.  Depression is the most commonly experienced mental illness and is the leading cause of disability worldwide.  Additionally, 18% of the US population live with anxiety disorders.  Moreover, arthritis continues to be the leading cause of disability in the US.  Nearly 23% of our population cope with arthritis and the serious impact it has on their quality of life.  According to the Centers for Disease Control (CDC), nearly 66% of working age adults have arthritis and 8 million working age adults report that their ability to work is compromised by arthritis.  The CDC reports nearly half of our population experience chronic illness.  These include cancer, stroke, heart disease, and diabetes.  As the population of the US ages and medical advances allow people with non-obvious disabilities to live longer, the need for workplace accommodations will grow.

Employees with non-obvious disabilities present unique challenges for Human Resource professionals.  These disabilities include diabetes, AIDS/HIV, mental illness, intellectual disabilities, and seizure disorders, to name only a few.  These non-obvious disabilities are included in the Americans with Disabilities Act definition of disability and offer the same protections as any other disabilities.  However, non-obvious disabilities, may not be recognized by employees and management, resulting in workplace misunderstandings.  For instance, some non-obvious disabilities may carry greater social stigma and people can be in danger of being subjected to significant discrimination.  People with mental illness are often faced with the unfounded myth that they are more likely to commit acts of violence.  People who have seizure disorders are often wrongly thought to be more at risk of workplace injury.  People who have AIDS/HIV may face discrimination based on ignorance of how AIDS/HIV is spread.

People with non-obvious disabilities may not exhibit obvious characteristics of having a disability yet the disability has an impact on daily functioning.  People with non-obvious disabilities can be subject to greater stigmatization and discrimination than people with obvious disabilities.  As an example, a person with a non-obvious disability may park in an accessible parking place and exit his car without the use of a wheelchair.  An observer who is unaware of the disability may make judgements based upon what is visible. As such, the observer may conclude that the person is taking advantage of a convenient parking spot or that their disability can’t be “that bad”.

Title I of the Americans with Disabilities Act (ADA) defines that employees are never required to disclose a disability unless they are seeking reasonable accommodation.  Choosing to disclose a disability is a decision that each individual must make based upon her circumstances and personal choice.  The decision to disclose is especially important for someone with a non-obvious disability.  A decision to not disclose early in the employment process should never be seen by an employer as an attempt by the employee to be deceptive by withholding information.  Human resource professionals must be aware of their responsibilities at each stage of the employment process.  In the pre-employment stage, employers are prohibited from inquiring about any disability of the applicant.  After an offer of employment is extended, but before an employee begins work, employers may engage in respectful disability inquiry. For example, the employer may require a medical examination. It is important to remember that medical examinations are required of all potential employees in a particular job classification.  After an employee begins work, an employer cannot engage in disability inquiry unless the employee has disclosed a disability in order to gain a reasonable accommodation.  In this third phase, employers are required to make a good faith effort to engage the employee in an interactive process to explore accommodations or alternatives.

Human Resource professionals must be aware of the fact that individuals with non-obvious disabilities have the same protections as individuals with obvious disabilities. They must also be vigilant to prevent workforce discrimination.  The US Equal Employment Opportunity Commission (EEOC) reports that in the fiscal year ending September 30, 2016, they resolved over 5,000 discrimination charges based on mental health disabilities alone.  A review of recent case law reflects increased employer discrimination charges involving employees with a broad range of non-obvious disabilities including post-partum depression, arthritis, and lower back impairment.

A few recent court cases also provide examples of the non-obvious disability in the workplace. In Indiana, a power grid operator with post-partum depression was denied her request for leave, available to her under company policy, resulting in a $90,500 judgement against the company (Midcontinent Independent Transmission System Operator, No. 1:11-cv-01703).  In Michigan, a medical billing clerk was fired when she requested a two week leave to accommodate rheumatoid arthritis.  The employee is seeking back pay, compensatory and punitive damages (Detroit Community Health Connection, No. 2:13-cv-12801).  Finally, a Pennsylvania laborer was fired hours into his first day of work when his employer learned he used a Transcutaneous Electrical Nerve Stimulation (TENS) Unit for lower back pain.  The employee did not disclose his disability or seek any accommodation.  He had been cleared by his doctor to work with no restrictions.  A company nurse deemed the employee “medically unqualified” without additional medical documentation (MPW Industrial Services, Inc., No. 2:13-cv-01011).

The issue of a non-obvious disability is an important one for Human Resource professionals but, should not be feared.  Rather, it is an opportunity to embrace the diversity of our workforce and use creativity to find accommodations that allow employees and our businesses to succeed.

For additional information and informal guidance on the Americans with Disabilities Act, contact the ADA National Network at 1-800-949-4232 or www.adata.org.

About the Author: Barry Whaley is the Project Director of the Southeast ADA Center, a project of the Burton Blatt Institute at Syracuse University, and a member of the ADA National Network.

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