By Rrita Osmani
Workers with disabilities are covered under the Americans with Disabilities Act of 1990 (“ADA”). 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 and disability discrimination.
Invisible Disabilities
This article explains protections afforded to employees with invisible disabilities under the ADA, Connecticut state law, New York state law and New York City law. It also discusses 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 an accommodation.
The ADA was amended in 2008 under the Americans with Disabilities Act Amendments Act (“ADAAA”) 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 ADAAA intended to make it easier for individuals with invisible disabilities to be protected, social stigma and biases may still affect an employee’s decision to disclose and an 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.
Disclosure Considerations
The ADA and ADAAA 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 their employer.
There are several considerations that disabled individuals must weigh when thinking about disclosure, despite codified 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, perceptions of “excuse-making,” the inability to reverse disclosure, and potential effects on advancement.
Even as protections have been expanded, employees with invisible disabilities, and disabilities in general, struggle to communicate their needs to coworkers or employers because of stigma. More often than not, when an individual discloses their invisible disability, it can be minimized by employers and coworkers because it is hard to perceive. This creates extra stress on the employee as they have to educate their coworkers 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 like “anxiety,” “PTSD” and “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 consistently prove that employees belong in that role. Fear of being perceived as an individual “making excuses” or as 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 accommodation requests or even refusal to engage in the interactive process regarding those requests.
Employees may choose to fully disclose their disability to everyone, including supervisors and co-workers. They may only choose to disclose their disability to their supervisor or HR. Furthermore, they may even choose to disclose their needs without naming the exact disability they have. Disabled employees may also choose not to disclose at all and self-accommodate.
The Equal Employment Opportunity Commission (“EEOC”) recommends that employers use an “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, employees can offer alternatives. Note that if an employer can show that the accommodation poses “undue hardship,” the employer may be entitled to refuse that accommodation.
Disabled Employee Rights Under the ADA
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, and fibromyalgia, are covered under the ADAAA. The ADA also protects individuals who are discriminated against because they are “regarded as” having an impairment, though accommodation claims generally require an actual disability or a record of disability.
The legal standard for disability discrimination 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 individual is covered under the ADA. Major life activities under the ADAAA include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C.A. § 12102.
The ADAAA’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 statute the “interactive process” that employers must engage with employees.
The EEOC has clarified that employers must evaluate each accommodation request individually and that broad policies denying accommodations for certain conditions or requiring specific documentation may violate the ADA. The EEOC recommends that employers:
- Look at the job involved and determine its purpose and essential functions.
- Consult with the individual requesting accommodation to understand the exact job-related limitations imposed by their disability and how those limitations could be overcome with a reasonable accommodation.
- Identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the job.
- Consider the individual’s accommodation preference and select and implement the accommodation that is most appropriate for both the employee and the employer.
How to Request Accommodations
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 that the employee has a covered condition and needs accommodation. Depending on how comfortable an individual feels disclosing specifics about their condition, an employee may choose to disclose their condition with specificity or just the existence of one with details on how their job functions are affected.
The explanation about how job functions are affected by the condition is critical to allow employers to understand how they can help provide accommodations. Accommodation requests then 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 is an individual who has 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 accommodations, those accommodations must be reasonable. Therefore, an employer may not be required to provide the exact accommodation an employee requested and may instead offer alternatives. Employees making requests should anticipate this and be prepared to offer alternatives that may help support their request.
It is always good practice to request accommodations in writing. This preserves employee rights in a clear format that is easy to reference. This communication should be sent to the employee’s supervisor or human resources, stating that the employee has a medical condition, identifying the accommodations needed, and formally requesting that the interactive process begin. The written communication an employee has with their employer about the request will be especially helpful if the request is later denied or ignored. This will help preserve evidence for potential legal claims. Furthermore, the EEOC clarifies that requests do not need to specifically reference the ADA or even use the phrase “reasonable accommodation.” Requests can be made in plain English.
To recap, in order to preserve their rights to request an accommodation, employees should:
- Notify the employer of their need for accommodation.
- Provide supporting documentation, if necessary.
- Engage in the interactive process.
- Receive a response from the employer: approval, modification, or denial with justification.
- Seek legal remedies, if necessary.
CT Law Protections for Disabled Employees
The Connecticut Fair Employment Practices Act (“CFEPA”) largely mirrors the ADA but extends protections to workplaces with three or more employees. Connecticut law also does not incorporate the concept of “substantially limiting a major life activity.”
Employers must also actively participate in a collaborative process with employees who request accommodations, working collaboratively to identify potential solutions that allow the employee to continue performing their job.
The CFEPA also includes protections for pregnant workers and individuals with temporary medical conditions.
NY Law Protections for Disabled Employees
Under the New York State Human Rights Law (“NYSHRL”), disability is defined more broadly than under the ADA and includes “a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions” that either prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques. N.Y. Exec. Law § 292(21).
NYSHRL also covers all employers in the State of New York, regardless of how many employees work there. In New York, like Connecticut, employers must engage interactively in the reasonable accommodation process. The employee has the duty to make the disability and need for accommodation known to the employer and has the right to request an accommodation at any time, even if their medical condition has not changed. The employer has 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 from the applicant or employee any documentation that is needed. While the accommodation is being considered, the employer has the right to medical or other information necessary to verify the existence of the disability or necessary for consideration of the accommodation. The employer has the right to select which reasonable 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 reasonable accommodation and in providing additional information necessary to verify the existence of the disability. The employee also has the right to have their medical information kept confidential.
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 in state court within three years of the alleged discrimination. Complaints may not be filed in both the Division and state court.
The New York State Human Rights Law applies to employers with four employees, providing stronger protection than the ADA’s 15-employee minimum. In addition, to qualify as a disability under the NYSHRL, an individual must have an impairment that can be identified by medically acceptable diagnostic techniques. This differs from the ADA’s “substantial limitation” rule, which is a higher bar to meet.
NYC Law Protections for Disabled Employees
Under the New York City Human Rights Law (“NYCHRL”), disability is defined even more broadly as “any physical, medical, mental or psychological impairment, or a history or record of such impairment.” N.Y.C. Admin. Code § 8-102. The NYCHRL has no requirement that an impairment “substantially limit” a person in some major life activity. In addition, the NYCHRL even covers individuals who are not disabled but whom the employer wrongfully perceives to be disabled.
Furthermore, NYC employers must engage in a “cooperative dialogue” with employees who request accommodations or whom the employer recognizes may need accommodations. N.Y.C. Admin. Code §§ 8-102, 8-107(28). This explicit requirement is broader than the federal “interactive process” idea.
The cooperative dialogue 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 NYC must provide written final determinations identifying any accommodation granted or denied. N.Y.C. Admin. Code § 8-107(28)(d). Failure to either engage in cooperative dialogue or provide a written determination is an unlawful discriminatory practice, regardless of the accommodation outcome.
Common Accommodations for Individuals with Invisible Disabilities and Common Misconceptions
Common accommodations for invisible disabilities may include schedule flexibility, physical workplace changes, policy adjustments and communication accommodations. Schedule flexibility can consist of different hours based on symptom fluctuations, remote work options, intermittent leave for particularly bad days or modified schedules around treatment. Physical workplace changes can include quiet workplaces for sensory issues, lighting adjustments, temperature control or private spaces for rest or medical needs. Policy adjustments may include flexible deadlines, less non-essential tasks or even modified attendance to certain work events or meetings. Communication accommodations may include written instructions, checklists for tasks or a 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 is an employer’s duty to understand their responsibilities under the ADA and relevant state laws. Therefore, it is important that employers understand what invisible disabilities are and how they can support workers. On the other hand, employees need to know their rights and understand that if they have an invisible disability, they are entitled to reasonable accommodation.
Unfortunately, if an employer pushes back on accommodation requests, an employee may have to play the role of educator as well. 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 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 protection covers the full range of the condition’s effects and not just symptoms present during any one episode.
Employers may assume that accommodations are costly. However, in a survey by the Job Accommodation Network, 58% of accommodations cost nothing, and most others involved a one-time cost that averaged $500.
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. Cost: $27.00.
- A desk layout was changed from the right to left side to enable a data entry operator who is visually impaired to perform her job. Cost $0;
- A phone headset allowed an insurance salesperson with cerebral palsy to write while talking to clients. Rental cost: $6.00 per month.
In addition, the Job Accommodation Network has a “Situations and Solutions Finder,” where individuals can search by disability, limitation, and occupation to receive accommodation suggestions.
If an Employer Denies an Accommodation Request
Most companies have internal appeal processes for denied accommodation requests. The employee may choose to have a meeting with a higher-level supervisor or involve HR if HR was not originally present. Providing additional medical documentation may also be helpful. If the denial is based on the 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. This helps employers comply with their duties and allows the employee to show that the 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 Equal Employment Opportunity Commission for federal ADA violations. New York employees can also file with the New York State Division of Human Rights or the NYC Commission on Human Rights for city law violations. Note that each of these bodies has strict deadlines: for EEOC filings, an employee has 300 days from the discriminatory act to file; state filings can extend to three years for some claims, but the deadline will depend on the specific forum.
Conclusion
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 of a diagnosis to request help, but they should clearly explain the work-related limitation and the accommodation needed. Employers, in turn, must take accommodation requests seriously, engage in the required interactive or cooperative process, and evaluate each request individually. If an employer ignores, denies, or retaliates against an employee for requesting accommodation, the employee should document what happened and consider speaking with an employment attorney about available remedies.
If you believe you are being discriminated against based on your disability, consider speaking to an employment lawyer. At Carey & Associates P.C., our team consists on experts on protections afforded to disabled employees including accommodations and prohibited retaliation based on accommodation requests.
For more information about this topic, please contact Carey & Associates, P.C. at info@capclaw.com or 475-323-6166.
