Invisible Disabilities And The ADA

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Hey, it's Mark, and welcome back to the Employee Survival Guide. Today's topic is visible disabilities in the workplace. Workers with disabilities are covered under the Americans with Disabilities Act. The ADA was drafted to protect individuals with disabilities from discrimination in all aspects of society, including the workplace. Employees with disabilities cannot be discriminated against based on their disability, and they are entitled to reasonable accommodations in the workplace. While some disabilities are easier to spot, some disabilities are invisible to the eye. These disabilities cannot be identified immediately and pose legal implications regarding disclosure, requests for accommodation, disability, discrimination. The episode discusses several different laws, the ADA, Connecticut state law, New York state law, and New York City law, all very different in some respects, all originating from the same level of protection for persons with disabilities. It also discusses the considerations that disabled employees may have regarding disclosure, the proper pathway to request accommodations, and what employers must do once they get a request for accommodation. The ADA was amended in 2008 under the American Disabilities Act amendments to include coverage for conditions that are not visible to the eye, such as diabetes, epilepsy, depression, and other conditions. Invisible disabilities can range from mental illnesses, cognitive challenges, anxiety, chronic pain, dyslexia, and more. While the ADA intended to make it easier for individuals with disabilities to be protected, social stigma and biases may persist and affect an employees' decision to disclose to an employer and employer's decision to grant accommodations. In a 2017 study by the Center for Talent Innovation, 30% of white-collar college-educated employees reported having a disability, but only 3.2% have disclosed it to their employer. Of that population with disabilities, 62% have an invisible disability.

Why Most People Never Disclose

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The ADA and the amendments lack guidance on how to ask for or implement accommodations for invisible disabilities. Practically speaking, fear of stigma and retaliation complicates an individual's decision to disclose their invisible disability to the employer. There are several considerations that disabled employees must weigh when thinking about disclosure. Despite cognified protections for disability, some benefits of disclosing include that disclosure is necessary for accommodation, may explain performance patterns, may promote understanding from supervisors, may reduce the stress of constant masking, and may connect an individual to a disability community. Potential negatives of disclosure, however, include the risk of disbelief, stigma in the workplace, perceptions of quote unquote excuse making, the inability to reverse disclosure, and potential effects on advancement in the workplace. Even as protections have been expanded, employees with this invisible disabilities and disabilities in general struggle to communicate their needs to co-workers or employers because of the stigma. More often than not, when an individual employee discloses their invisible disability to the employer, it can be minimized by employers and co-workers because it is hard to perceive. This creates an extra stress on the employee as they have to educate their co-workers and employers as well as request accommodations. Furthermore, some invisible disabilities have fluctuating symptoms that may give an employer reason to doubt the accommodation or disability. For example, an individual with chronic pain may feel okay to come into work one day, but on another day may experience pain that requires them to take frequent breaks or work from home. An individual that suffers from mental health conditions such as anxiety or depression may be doubted because these conditions are internal and not visible. Society also overuses mental health terms such as anxiety, PTSD, OCD, which may delegitimize a person's diagnosis. In high performing workplaces, the stigma surrounding disclosure of a disability is compounded by the pressure to constantly prove that the employees belong in that role. Fear of being perceived as an individual making excuses or someone who does not carry their weight may dissuade an individual from disclosing their disability to their employer. This may lead an individual to self-accommodate or go through work with no accommodations despite having real hardships. The irony is that often, if an employer is open to understanding what invisible disabilities are, how they affect employees, and how accommodations would help, the employee can perform their job more effectively. Unfortunately, employer biases and stigmas may show up as doubt about the legitimacy of an accommodation request or even refusal to engage in the interactive process regarding those requests, which happens routinely. Employees may choose to fully disclose their disability to everyone, including supervisors and coworkers. They may also choose to disclose their disability to the supervisor or HR. Furthermore, they may even choose to disclose their needs without naming the exact disability they have. Disabled employees may also choose

Pros And Cons Of Disclosure

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not to disclose at all and self-accommodate. The Equal Employment Opportunity Commission, the federal agency that's governing this area of law, recommends that employers use, quote unquote, the interactive process to work together with disabled employees requesting accommodations to foster an inclusive environment for all employees. Employers should be open to discussing employee disabilities, both visible and invisible, and what those employees may need to perform the essential functions of their jobs. Employees can help guide the conversation with education about their disabilities, how those disabilities affect them, and how accommodations will aid them. While employers are not required to approve the exact accommodation employees request, if it is too burdensome, employee employees can often offer alternatives. Note that if an employer can show that the accommodation poses undue hardship, the employer may be entitled to refuse the accommodation. Under the ADA, disability discrimination in employment is prohibited, and employers with 15 or more employees must provide reasonable accommodations. Invisible disabilities that limit major life activities are covered under the Act. Courts have ruled that even conditions with episodic symptoms such as migraines, diabetes, anxiety, fibromyalgia, are all covered under the ADA and the amendments. The ADA also protects individuals who are discriminated against because they are quote unquote regarded as having an impairment, though accommodation claims generally require an actual disability or a record of disability. The legal standard for disability discrimination protects protection does not require a condition to be visible, so long as an individual has a physical or mental impairment that substantially limits one or more major life activities that an individual is covered under the ADA. Major life activities under the ADA include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and finally working. I'm quoting from the statute. The ADA's amendment's definition of major life activities has allowed for employees with invisible disabilities to adequately assert their need for accommodations. Further, courts have read into the statute the interactive process that employers must engage with employees. The EOC has clarified that employers must evaluate each accommodation request individually and not that the broad policies denying accommodations for certain conditions or requiring specific documentation may violate the ADA. After many, many years of litigation experience, I'm going to tell you that many employers do in fact deny accommodations, even though it goes counter to what I just spoke to you about. The EEOC recommends the following for employers. Look at the job involved and determine its purpose and essential functions. Two, consult with individual with the individual employee requesting accommodation to understand the exact job related limitations imposed by the disability and how those limitations could

The Interactive Process That Matters

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be overcome with a reasonable accommodation. Three, identify potential accommodation alternatives and assess the effectiveness of each would have in enabling the individual to perform the essential functions of the job. And then finally, consider the individual's accommodation preference and select the and implement the accommodation that is most appropriate for both the employee and the employer. Individuals needing accommodations are not required to disclose the exact diagnosis to receive accommodations. Individuals can just state that they have a medical condition and how it affects certain job functions. Employers are not entitled to a specific diagnosis to approve requests, but they must have enough information to understand the functional limitations and accommodation needs. In many cases, especially where the disability or need for accommodation is not obvious, an employer may request reasonable medical documentation sufficient to confirm the employee has a covered condition and needs accommodation. In all transparency, employees don't lie about this. It's in practicality people, when they request accommodations because they really, really do need something changed in an accommodation. Depending on how comfortable an employee an individual feels disclosing specific about their condition, an employee may choose to disclose their condition with specific circumstances just or just the existence of one with details on how the job functions are affected. The explanation about how job functions are affected by the condition is critical to allow the employers to understand how they can help provide accommodations. You have to really explain the essentials of the job and your condition to the employer. Don't make them guess. Make it easier for them. Accommodation requests that can be tied directly to the functional requirements of the job. For example, an individual that needs to structure, work around a medication schedule may request a flexible work schedule. Another example would be an individual who has a cognitive impairment that affects memory, may need instructions in a written format and not just orally. The more clear the link between the request and the job function, the easier it will be for an employer to understand why the accommodation is necessary. While an employer is required to provide accommodation, those accommodations must be reasonable. I often use the example that I want a TV in my office because it's really nice. It's nice to have a TV and watch TV and maybe whatever. If that TV is not required to do my job function and I don't have a disability and it's not an accommodation request, I it's a I can be denied that accommodation. So if you do need a TV for purposes of whatever your disability is, it's usually a qualification of something you need to perform the essential functions. While an employer is required to provide accommodations, those accommodations must be reasonable, as we said. Therefore, an employer may not be required to provide the exact accommodation an employee requested and may instead insist on alternatives. Employees making requests should anticipate that this and be prepared to offer alternatives that maybe help support the request. It's always good to practice to request accommodations in writing. Please send an email. I always advocate that. Timestamp it. This preserves employee's rights in a clear format that is easy to reference. The communication should be sent to the employee's supervisor or human resources personnel, stating that the employee has

How To Ask In Writing

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a medical condition, identifying the accommodations needed, and formally request that the indirector process begin. The written communication an employee has with their employer about the request will be easily especially helpful if the request is later denied or ignored. And as attorneys, we can look for the email request being made and document what the employer did after that. Typically nothing. This will help preserve the evidence for potential legal claims. Further, the EOC clarifies that requests do not need to specifically reference the ADA or even use the phrase reasonable accommodation. Most people don't understand that. So that's very, very clear. But requests must be made in plain English. Don't make the employer guess. To recap, in order to preserve the rights to request an accommodation, employees must do the following. One, notify the employer of their need for accommodation. Two, provide supporting documentation if necessary. Three, engage in the interactive process, even if the employer resists it, demand it. Four, receive a response from the employer, approval, modification, or denial of the justification. Five, seek legal remedies if necessary. Now Connecticut has a statute called the Connecticut Fair Employment Practices Act, C FIPA. It largely mirrors the ADA, but also extends protections to workplaces with three or more employees versus the ADA, which is 15 or more. Connecticut law also does not incorporate

Connecticut And New York Law Differences

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the concept of, quote, substantially limiting major life activity language that the ADA does. For example, pregnancy can be a disability under the Connecticut statute. Employers must also actively participate in a collaborative process with employees who request accommodation, working collaboratively to identify potential solutions that allow the employee to continue performing their job. The Connecticut Statute also includes protections for pregnant workers and individuals with temporary medical conditions, as I said. New York protections. Under New York state law, the human rights law, disability is defined more broadly than the ADA and includes a physical or mental medical impairment resulting from an anatomical, physical, physiological, genetic, or neurological condition that either prevents the exercise of a normal bodily function or demonstrably by medically accepted clinical or laboratory diagnostic techniques. And I'm reading the statute. Employee has the duty to make the disability and the need for accommodation is known to the employer and has the right to request accommodation at any time, even if their medical condition has not changed. The employer has then the duty to move forward to consider accommodation once the need for accommodation is known or requested. The employer also has the duty to clearly request that the applicant, employee, document what is needed. While the accommodation is being considered, the employer has the right to make to request medical and other information to verify the existence of the disability or necessarily consider the accommodation. The employer has the right to select which accommodation will be provided so long as it is effective in meeting the need. The employee has the duty to cooperate with the employer in considering and implementing the requested accommodation and providing additional information necessary to verify the existence of the disability. The employee also has the right to have the medical information kept confidential, which is very, very important. If discrimination occurs, a complaint must be filed with the Division of Human Rights within one year of the occurrence of the discrimination. Complaints may also be filed directly with the state court within three years of the alleged discrimination. Complaints may not be filed in both the, I'm sorry, complaints may be filed both in division and with the EOC at the same time under our work sharing agreement. But you have to exhaust your administrative remedies first before going to court. New York State Human Rights Law applies to employees with four or more employees, providing stronger protection than the ADA's 15 employee minimum. In addition, to qualify as a disability under the New York law, an individual must have an impairment that can be identified medically by medically acceptable diagnostic techniques. This differs from the ADA's substantial limitation rule, which is a higher bar to meet. Now, New York City law, my favorite, this is a very broader statute. Under New York City human rights law, the disability is defined even more broadly as any physical, medical, mental, psychological impairment, or a history of record of such impairment. The New York City law has no requirement that an impairment substantially limit a person in some major life activity. In addition, New York City law even covers individuals who are not disabled, but whom the employer wrongfully perceives to be disabled, essentially being regarded as disabled. Furthermore, the New York City law employers in New York City must engage in a cooperative dialogue, so it sounds similar, with employees who request accommodations and whom the employer recognizes may need accommodations. I'm just quoting from the statute. This explicit requirement is broader than the federal interactive process idea. The cooperative language must be conducted in good faith and within a reasonable time, employers must discuss accommodation needs, potential accommodations, alternatives, and any difficulties proposed accommodations might pose for the business. Lastly, employers in New York City must provide written final determinations identifying any accommodations requested, granted, and denied. That's required by the statute. Failure to either engage in cooperative dialogue or provide a written determination is unlawful discriminatory practice regardless of the accommodation outcome. Here's the kicker. Under New York City law, the damages can be punitive and quite high versus the statutory cap language in the ADA. So employers do fear the New York City law because it doesn't have a cap on damages. So it's a very powerful device to use against an employer regarding New York City employment. Now, common accommodations for individual or invisible disabilities may include the following schedule flexibility, physical workplace changes, policy adjustments, and communication accommodations. Schedule flexibility can consist of different hours based on symptom fluctuations, remote work

Common Accommodations And Real Costs

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options. We all understand what that means these days, intermittent leave for particularly bad days, or modified schedules around treatment. Physical workplace changes can include quiet workplaces for sensory issues, lighting adjustments, think of those fluorescent lights in the ceiling, which drive me mad, temper temperature control, maybe a place is just too cold, private spaces for rest or medical needs, policy adjustments may include flexible deadlines, less nonessential tasks, or even modified attendance to certain work events or meetings. Communication accommodations may include written instructions, checklists for tasks, or reduced meeting load. Ultimately, accommodations will be dependent on the specific disability the employee has and their unique needs to perform the job function. However, employers may view requests like telecommuting or schedule changes with doubt or skepticism. It's important to note that it's an employer's duty to understand their responsibilities under the ADA and relevant laws. Therefore, it is important that employers understand what invisible disabilities are and how they can support workers. That sounds great, but most employers don't do that. I'll tell you that by experience. On the other hand, employees need to know that their rights and understand that if they have an invisible disability, they are entitled to reasonable accommodation. That's also very important, and many employees don't understand that. Unfortunately, if an employer pushes back on accommodation requests, an employee may have to play the role of educator as well. And I encourage clients to do that because they need to, you know, sink some common sense into their employer, usually by email and document in some, you know, obviously a conversation one-on-one is helpful, but documenting things in an email afterwards is very important. While taxing, this may help employers understand why an individual needs a certain accommodation and may increase the likelihood that the request will be granted. An employee may offer to provide documentation for their health care from their healthcare provider explaining how their condition affects their functioning. If an employer pushes back on fluctuating symptoms, an employee may choose to explain that these fluctuations are medically documented. Again, the ADA's protections covers the full range of the conditions, effects, and not just symptoms present during any one episode. Employers may assume that accommodations are costly. I hear that a lot, however, in a survey by the Job Accommodation Network, which you can find at JAN.gov, I believe, or JAN.org, 58% of accommodations cost nothing. And most others involve a one-time cost that average maybe $500. Why the employers push back, I just don't understand it. But accommodations have always cost little to nothing. The EEOC also gives examples of low-cost accommodations. A timer with an indicator light allowed a medical technician who was deaf to perform laboratory tests. The cost was $27. Another example of a desk layout was changed from right to left to enable a data entry operator who is visually impaired to perform her job. The cost was zero dollars. And there are many, many, many examples. Some companies have internal appeal processes for denied accommodation requests. Some make it very arduous and difficult to proceed through their processes. It's all designed to just make you give up. But don't give up. Just be persistent. Advocate. The employee may choose to have a meeting with a higher level supervisor or involve HR if HR was not originally

Denials, Deadlines, And Next Steps

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present. Providing additional medical documentation may also be helpful. If the denial is based on an employer's belief that the accommodation is not reasonable, the employee should suggest alternative accommodations. If the employer is still skeptical, the employee may propose a trial period for the accommodation to evaluate its success. I'll take that further. You should also schedule quarterly reviews of your accommodation and document the same with the employer to show, you know, was it successful or not? Or the accommodation needs to be modified because maybe it does. It's not a black and white scenario. It's usually a fluid continual process, so keep that in mind. All this helps employers comply with their duties and allows the employee to show that accommodation actually helps them. If the employer still denies the request, even after the employee has tried the strategies above, the employee may consider filing a discrimination complaint with the EEOC for federal ADA violations, maybe New York City violations, New York State violations. Each of these bodies, government bodies have strict deadlines for filing claims. Typically, employee has 300 days from the discriminatory act to file state filings and can extend to three years for some claims. But the deadline will depend upon the specific form. So overall, invisible disabilities are protected by federal, state, and local law, even when symptoms are not obvious to others. Employees do not need to disclose every detail or of a diagnosis to request help. They should explain clearly that the work-related limitation and the accommodation needed. Employers in turn must take accommodation requests seriously, engage in the required interactive or quote unquote cooperative process under New York City law, and evaluate each request individually. If an employer ignores, denies, or retaliates against an employee for requesting accommodation, call me. The employee should document what happened and consider speaking with me, an employment attorney, about remedies you may have. But the first thing I'll say to you is that I won't try to create a legal claim. What I'll try to do is I'll try to enforce the accommodation request and make it successful because all the end of the day you want to continue working. You don't want to have to start to contact employment counsel to make it happen because once you do that, it's the employer is just going to start to slam the door on you. So oftentimes in over the last 30 years, I've worked behind the scenes trying to make the interactive process successful through the employee with their employer without them ever knowing. Sometimes I've gotten involved to escalate things, but I try to avoid that because I don't want to sour the relationship between the parties. But in the end, sometimes my role, and more often than not, is to hide behind the scenes, prepare the case for its eventual what's going to happen is a termination, and set the employer up before they ever knew that what was happening to them. Because many employers don't understand what they're doing, and you have to educate them about what their responsibilities are. And I know it sounds unfair, but that's just the way you need to be effective to combat your employer. So hopefully you found all this information invaluable to you and allowing you to further find some clarity in your own invisible disability and in disabilities in general and accommodations. Thank you for being letting me be of service.