May 2017

Invisible disabilities: How does an employer know when to provide accommodations?

When an employee’s disability involves no outward symptoms but affects her ability to do her job, how does an employer provide accommodations?

An expert panel recently tackled that question at the 10th Annual Labor and Employment Conference in Chicago, and a summary of the program in the winter edition of the ABA Labor and Employment Law newsletter shed some light on the topic.

According to John A. Henderson, an administrative law judge at the Equal Employment Opportunity Commission in Boston, the law imposes on an employee the obligation to make the accommodation request.

Henderson further noted that in ideal situations, the employee with a disability would work together with Human Resources and his physician to “provide relevant information to direct supervisors so as to enable the supervisors to manage the employee on a day-to-day basis.”

That said, the panel acknowledged that too many employees conceal their disability from their employers. Kathleen Phair Barnard of Schwerin Campbell Barnard Iglitzen & Lavitt LLP in Seattle, who advises employees and unions, said that employees often don’t disclose because of “fear of how employers will react.”

And, since most disabling conditions—such as depression, diabetes and anxiety conditions—come with no outward physical manifestations, employers may never know that workers are struggling unless their conditions are disclosed.

Acknowledging that the stigma against people with disabilities is real, Barnard advised employers to aim to create a “culture of openness where employees feel confident bringing forward health issues that may be affecting their performance.”

In creating such an environment, it is helpful to have “frontline supervisors trained to identify when a disability may be impacting an employee’s workplace performance, and how to handle through the proper channels,” advised Brett Rawitz, associate general counsel for litigation and employment at U.S. Foods in Chicago.

A culture of openness benefits not only people with disabilities, it helps everyone in the workplace, as open dialogue helps all employees meet the essential functions of their job, regardless of whether they have a visible or invisible disability, or none to all. 

The ABA Labor and Employment Law newsletter is a publication of the ABA Section of Labor and Employment Law.

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