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Nov. 15 — A significant uptick in charges filed with the Equal Employment Opportunity Commission indicates a large number of employees with invisible disabilities have issues in the workplace.
According to statistical charge data, 26,653 discrimination claims related to non-obvious disabilities were filed with the federal agency in 2011, and 29,281 claims were filed in 2015, Administrative Law Judge John Henderson said. These data, which don't encompass charges filed with state agencies, demonstrate “this trajectory is going up,” the EEOC ALJ said.
As a result of these increasing charges and the ADA Amendments Act of 2008, it's critical that employers know appropriate ways of engaging with employees in order to provide effective reasonable accommodations. The ADA Amendments Act broadened the definition of disability to include impairments that substantially limit the operation of certain non-obvious major bodily functions.
Employment attorneys and a lead consultant for the Job Accommodation Network (JAN) Nov. 12 discussed accommodation techniques and resources during the American Bar Association Section of Labor and Employment Law’s conference in Chicago.
“Many hidden disabilities remain hidden,” Kathleen Phair Barnard of Schwerin Campbell Barnard Iglitzin & Lavitt LLP in Seattle, Wash., said. “People don't disclose them for whatever reason. It may be they're concerned about how their employer is going to react to them, or they feel like some issues are stigmatized in our society.”
Furthermore, employees may not understand their disability is affecting job performance, she added.
Federal anti-discrimination law's limitations on employer inquiries regarding disability status complicate the issue of knowing and accommodating hidden disabilities, said Alisa Arnoff. Arnoff is a management attorney in Scalambrino & Arnoff LLP's Chicago office.
ADA violations may occur in situations where job performance issues arise and there's an “off-the-cuff discussion between a supervisor and an employee” in which a supervisor pushes for information to explain those performance deficiencies. Under the ADA, medical inquiries are prohibited before a conditional employment offer is made, and during employment, absent a legitimate business reason.
“The act specifically says you have to have a legitimate reason for asking for medical information and it has to be directed at the actual problem,” not the employee's entire medical history, Barnard said.
The Genetic Information Nondiscrimination Act has similar prohibitions on obtaining family medical history.
JAN's ADA specialist Tracie DeFreitas noted practical issues associated with requesting medical information from employees. Whether an employer can or should make such a request depends on what the employer already knows.
Think about what information is needed before you make an employment decision, she urged.
“In the case of individuals with hidden impairments, oftentimes you don't have a lot of information,” DeFreitas said.
If an employee discloses that he has a problem that is affecting his ability to meet work requirements, start by having an open discussion about why he is experiencing difficulty in the workplace. If that discussion doesn't yield enough information for you to be certain that the person has an impairment, has limitations and actually needs an accommodation, then move to that next step and decide what medical information is needed so you can implement an accommodation, DeFreitas said.
“You don't need a lot of information.” You just have to understand that there's an impairment, and there are significant limitations affecting the employee's “ability to meet the requirements on the job or perform the job duties, and an accommodation will help,” she explained.
If employers are unfamiliar with the nature of an individual's impairment, it may be necessary to get a medical opinion about what an individual's specific limitations are with respect to the work involved so they can make more informed employment decisions, Henderson said.
“Look, you are not a doctor,” Barnard said to employers. An employer can't unilaterally decide whether this person's limitation, without any kind of information from a medical provider, prevents a person from performing the essential functions of a job, she said.
Under the ADA, an employee plaintiff must show an employer discriminated because of a known disability. An employer may be insulated from liability if a supervisor lacks knowledge of the disability and takes an adverse employment action.
Based on this potential lack of knowledge defense, Arnoff asked the panel at what point should a supervisor not be told about the existence of an employee's disability?
U.S. Foods in-house counsel Brett Rawitz said although it's not necessary for front-line supervisors to have access to medical information, he recommends that supervisors have enough information about workers' limitations to effectively manage circumstances on a day-to-day basis and provide appropriate accommodations.
Barnard added, in most cases, supervisors don't need to know a person's particular diagnosis or condition. As a rule of thumb, information about an employee's medical issues should be provided on a need-to-know basis.
Echoing Rawitz and Barnard, Henderson acknowledged employers may seek to limit front-line supervisors' knowledge of disabilities as a strategy to minimize the risk of litigation but urged them to strike a balance.
DeFreitas said managers and supervisors need to be well-trained in understanding when they've received an actual request for accommodation and in identifying scenarios in which employees may require accommodation.
Essentially, when it becomes clear that there's a work-related barrier or that a workplace adjustment is needed because a medical impairment is affecting an employee's ability to perform job duties, you know it's an accommodation situation, she said.
Disability disclosure absent a work-related barrier is probably not an accommodation request, she said. Further, voluntary self-identification and requests for workplace adjustments available to employees without disabilities also aren't accommodation requests.
What happens when a disability is disclosed during the performance management process, or when a person requests accommodation for the first time in response to a poor performance rating?
“Oftentimes employers aren't sure which direction to take,” DeFreitas said. “Once you have information about the need for accommodation or that the person isn't meeting your performance requirements because of a medical impairment, that's when it's time to engage in the interactive process. It doesn't mean that you disregard the evaluation.”
As a good management practice, employers should proceed with the performance evaluation and commence the interactive process by gathering information about the impact of the disability on job performance, she said. If it's necessary to determine whether a person qualifies for an accommodation and what accommodations would be effective, employers can request appropriate medical information.
“You want to explain what's been observed in terms of performance issues and then address the possibility of implementing accommodations that would allow that person to succeed on the job,” the JAN consultant said. If there's a reasonable accommodation, the employer should monitor its effectiveness and evaluate the employee's performance.
JAN recommends that employers “document everything” throughout the evaluation process and the interactive process, she said.
The panelists agreed that educating the workforce on the need to accommodate and training management and human resources personnel about how to respond to disability disclosure and accommodation requests are crucial.
The speakers emphasized the importance of creating a culture that encourages employees to discuss with management adjustments or tools needed to be successful on the job.
“The issue of stigma is a real one. I think that part of the employer's obligation is to think about that in a very proactive way,” Henderson said. He urged employers to tell employees there are multiple opportunities to address concerns early, prior to an adverse employment decision.
It also may be a worthwhile exercise for employers to measure reasonable accommodation policies against actual practices. Rawitz said: “You all have those great written policies that outside counsel have developed that can pass EEOC and judicial review. That being said, it doesn't mean too much if you're not doing something internally to make that thing live a little bit.”
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