If you had a disability in the past, do you qualify for Americans with Disabilities Act protections now? What kind of information do you need to provide to an employer to demonstrate a record of a disability or an ongoing disability? This edition of Ask About the ADA is about some of the ways people document disabilities with their employers, whether or not the disability is ongoing.
NortheastADA.org
If you had a disability in the past, do you qualify for Americans with Disabilities Act protections now? What kind of information do you need to provide to an employer to demonstrate a record of a disability or an ongoing disability? This edition of Ask About the ADA is about some of the ways people document disabilities with their employers, whether or not the disability is ongoing.
NortheastADA.org
JOE ZESSKI: Hello. Welcome to Ask About the ADA, the podcast where we answer your questions about the Americans with Disabilities Act and how it applies to your everyday life. On this week's edition of Ask About the ADA, we are going to answer two questions that we received from our technical assistance line here at the Northeast ADA. Both are about sharing your disability with a potential employer and what information is needed if you decide to do that.
So here's our first question. "I'm a cancer patient in remission from acute promyelocytic leukemia. I've recently been applying to jobs, and I'm confused about what I should be answering about the voluntary disclosure of a disability. Mostly I want to know if my cancer, which can reoccur, is considered a form of a disability."
Well, let's answer this question. First, let's consider the last part. Is cancer that is in remission potentially a disability under the Americans with Disabilities Act? And the answer is yes. It comes under the part of a definition of a disability known as a record of having a disability.
So the person that wrote in with this question is currently in remission. However, this cancer can return, and, moreover, the person may have, although it's not mentioned directly, some long-term effects from the cancer. So in this regard, the person would fit under the definition of disability from the Americans with Disabilities Act, which, just to refresh, is a physical or mental impairment that substantially limits a major life activity, a record of such an impairment, or someone being regarded as having such an impairment.
Now let's go back to the earlier issue, where the person mentioned about disclosing that they have a disability. And as the person seems to indicate, this is purely voluntary. And this is true for everyone who has a disability under the ADA. You don't need to disclose that you have a disability unless you're trying to request a reasonable accommodation. So again, disclosing a disability is purely voluntary, and you don't have to discuss it at all during the application process unless you want to ask for a reasonable accommodation.
Sometimes people are worried that not disclosing is hiding information or lying to a prospective employer. And that is not the case. The Americans with Disabilities Act, and the implementing regulations from the Equal Employment Opportunity Commission in regard to employment, is very clear that a person has the right not to disclose their disability. And doing so is not considered duplicitous or hiding information in any way. It's a person's right.
So when you do apply for a job, if you're a person with a disability, you apply based on your own merits and qualifications for the position. After you get the job, you're still under no obligation to disclose that you have a disability, whether a present one or a record of one.
Now if at some point you do decide to disclose that you have a disability, now the employer can ask for more information to determine what is going to be the right and appropriate reasonable accommodation. And we'll actually tackle what kind of information that might be in our next question.
So our second question came from a webinar that the Northeast ADA held back in October of 2021. The question is, "Can you give examples of the type of information that an employer might ask for a reasonable accommodation request?"
Well, an employer, when they're looking for information related to determining a reasonable accommodation request, will ask for information about the nature of the disability and how it relates to a accommodation request, how it relates to the need for the accommodation request. Typically this is going to be related to specific job tasks, and that's why the person, the employee, is asking for a reasonable accommodation. So this part goes together.
It's important to keep in mind, too, that just providing general information may not be enough. For example, two people may have the same kind of disability, when you look at it from a broad perspective. But the details are different, and every person's disability affects them differently. So for example, let's say we have two different employees. Both are low vision. However what that means, what that low vision effect is, can be quite different.
So for example, the first person might have trouble reading standard-sized print. And so the accommodation request that they might need might be related to enlarging print, or so forth. The second person, who has trouble with their peripheral vision, may be able to read standard print. And so the accommodation that they would need could be very different from the first person, who has difficulty reading standard print but is also someone who might be broadly termed someone who is low vision.
So again, the type of information needed will be based on the person's disability, how it affects them, and what kind of specific tasks their job involves, and the types of accommodation requests that they need to be able to do their essential job functions.
Something to keep in mind as well is that while the employer has the right to ask for medical information related to the disability request, they can't do a fishing expedition, if you will. In other words, they can't ask for a complete entire medical history of the person if it's not relevant to the accommodation request.
And almost certainly a whole medical history will not be. In other words, the questions that an employer can ask must be targeted to the disability as it relates to the need for the accommodation request. In other words, how does the disability impact the person? And how does it affect their job performance and work tasks?
During the process the employer does have the right to ask the employee to use their doctors, in other words, the employer's doctors. Now if they do that, then the employer does bear the cost of the medical visit and what is related to documenting the disability. However, many employers allow employees to use their own medical providers. And if they do that, the individual then must cover the cost of the doctor visits and any related information that needs to be gathered.
As the information is gathered, it begins the process, or continues the process, of reasonable accommodation, which is an ongoing dialogue. Both sides should bring information to that. And they both should have ideas about reasonable accommodations and what's appropriate.
Typically, though, the employee has something specific in mind. They have a specific type of accommodation, whether it's an adjusted schedule, a piece of equipment, a change in the way things are done that will enable them to do a function of their job with their disability.
But as I said, it is an interactive process. And ultimately the employer does get to decide what the reasonable accommodation requests will be. However, the accommodation that the employer provides must be effective, even if it's not exactly what the person requested.
Well I hope these two questions about disclosing the disability and the information around that have been helpful to you. If you have other questions about your rights as an employee with a disability, or as an employer under the Americans with Disabilities Act, please feel free to contact us here at the Northeast ADA.
You can reach us at 1-800-949-4232, visit our website, northeastada.org, or look for us on social media. And certainly you can reach out to us on Twitter or on Facebook, LinkedIn. Just look for @northeastada.
Again, let me thank the people who make this possible. Thank you to Grace Fairchild, our producer here at the Northeast ADA, as well as to Peter Quinn of the Yang-Tan Institute's media team for doing all the editing and making everything sound good. Thank you for listening, and let's continue the conversation.