Disability is a matter of perception. If you can do just one thing well, you’re needed by someone.” – Martina Navratilova
One of the most gratifying things about having formerly worked at the Voluntary Action Center (VAC) is that the agency’s work helps provide integration and support for individuals with disabilities. VAC is a social service nonprofit that provides community transit and community nutrition services to seniors, individuals with disabilities, and low-income persons.
Serving persons with disabilities is very important to me. Especially so is helping bridge gaps for persons with “invisible disabilities.” Having several family members and friends who have invisible disabilities, this topic is one I am very much connected to and passionate about.
So, when I had the opportunity to interview Lara de Leon, an expert on disability accommodation, on the topic of accommodating invisible disabilities, I jumped at the chance!
Lara hosted a session at the 2019 SHRM Annual Conference and Exposition called “When Looks Deceive: Detecting and Accommodating Invisible Disabilities.” Attendees discovered ways to discover and accommodate invisible disabilities in the workplace.
Thank you for taking the time to discuss your session with me. As a person who has several family members with invisible disabilities, this topic is very close to my heart. Can you please explain the term “invisible disability” for those who aren’t familiar with it, and provide some examples?
The term “invisible disabilities” refers to those conditions that may not have an “obvious” physical manifestation, and may not be readily apparent to others. Often, individuals with these conditions seem to suffer in silence, and their need for assistance or workplace accommodations may not be as apparent as with other more physical conditions. Examples of these invisible disabilities range from various forms of mental illness to learning disabilities, to neurological conditions.
The title of your session mentions detecting invisible disabilities, which is likely difficult for the untrained eye! Like “visible disabilities,” invisible ones are diverse and complex with multiple or contradictory indicators. Without giving too much away, can you elaborate on how an employer can be more aware of when an invisible disability is affecting an employee?
This requires an element of awareness of your employees, and the ability to recognize any signs of struggle or changes in behavior. Examples can include having a stellar employee who is suddenly unreliable or struggling with performance, or one who begins to act erratically or has uncharacteristic outbursts. Managers should be cautioned not to attempt to “diagnose” or make assumptions about employees and their behavior, as that can have legal ramifications as well. Rather, we encourage managers to know how to observe behaviors, ask the right questions about needing assistance, and escalate to get the help needed.
How can an employer detect an invisible disability without crossing the line into a diagnosis?
Managers should focus on objective behaviors that they observe, rather than make assumptions or attempt to identify the underlying cause of the situation. Managers should also be trained to have conversations about employee performance and the potential need for accommodation without delving into sensitive information such as diagnosis or treatment.
My understanding of the American Disabilities Act is that employers have the same responsibilities in accommodating invisible disabilities as they do other disabilities. Have you seen or heard of more resistance by employers to offer accommodation since it’s not as “apparent” as more visible ones?
Yes, employers have an obligation to provide reasonable accommodations to the known disabilities of their employees. Anecdotally, one hears that accommodations for invisible disabilities are viewed more skeptically; however, the more educated we become about these conditions and understand their prevalence and impact in the workplace, we will see these stigmas go away. Many workplaces are already seeing an increased dialogue with mental illness, for one example, along with a focus on wellness initiatives, which is a refreshing change.
Do employees have any responsibility in disclosing their invisible disabilities to their employer? How does HIPPA play a part in this complex situation?
Employees are responsible for notifying their employers of any need for accommodation due to a disability – they do not necessarily need to disclose the medical condition or diagnosis. Often, once an employee discloses a need for accommodation, human resources will become involved and request supporting medical information for the request. A dialogue then occurs between the employee’s healthcare provider and the company. HIPAA is a complex statute, and it does have some limited applicability in the accommodation context. Employers will find that healthcare providers will not provide necessary information about their patient’s condition without consent. For this reason, it is important to makes sure your forms are updated to contain this consent. There are also other federal and even state laws that impose requirements on how employers must maintain this medical information once received. At a minimum, employers need to keep this sensitive information in a separate file, apart from the employee’s personnel file, and only provide the information to those who have a legitimate business need to know.
How can employers better equip managers and supervisors with being aware of and assisting with (if needed) their employees’ invisible disabilities?
Training is key, as is having sound policies and practices for addressing accommodation requests. Managers should feel empowered to manage, and have conversations with their employees without fear of “messing up”. Training should involve not just the legal requirements under ADA, but also training on “softer” skills of discussing these matters with their employees, and knowing where to go to for help.
There has been a lot written about the growing mental health crisis in many parts of the world – especially in America due to the stigma attached to it by society. When it comes to mental health, what can employers do to help fight the stigma of invisible disabilities in the workplace?
I saw a statistic recently that in 2018, roughly one in four adults in the US experienced a mental health disorder. Employers should encourage communication about mental illness and how it affects individuals in and outside of the workplace. Employers can also implement outreach and mindfulness initiatives as part of their benefits strategy, and provide employees with resources such as EAP to provide help when they do not know where else to turn.
I really appreciate your time. One final question. What resources can employers use to learn more about accommodating employees with invisible disabilities?
There are so many amazing resources out there – one place to start is with the employee or his/her healthcare provider. There is no one-size-fits-all approach to this, and the best place to start is to identify what the particular employee’s needs are. The Job Accommodation Network (JAN) and its searchable online accommodation resource is a good starting point.
Lara de Leon is a shareholder with Ogletree Deakins. She works with employers of all sizes to provide practical and strategic advice in all aspects of employment law. She is licensed to practice law in Texas and California and is Board Certified by the Texas Board of Legal Specialization in Labor and Employment Law. Lara counsels and trains clients on matters including discipline and termination, leaves of absence, accommodations, harassment, investigations, and wage/hour compliance. Lara is the co-chair of Ogletree’s Pay Equity Practice Group. Lara also has extensive experience defending clients in federal and state courts, arbitrations, and before administrative agencies.