Here at JAN, we’ve written a good bit about disclosure – what it means, and how, when, and why it should be done. You can find the information on our website at AskJAN.org under A-Z Topics. But what we have not really covered is the timing of the disclosure from the employer’s perspective. Many employers expect job applicants to disclose their disabilities during the application/interview stage and feel deceived when they find out later on that an employee had a disability at the time of the hiring, but neglected to let the employer know. Some employers even go as far as to say if they had known about a disability, they wouldn’t have hired the employee.
JAN consultants get frequent calls from employers describing this very scenario, and wondering if they have to accommodate an employee when he or she failed to disclose a disability and ask for accommodations before the hiring. The answer to that question would be maybe, but they would certainly need to engage the employee in the interactive process and consider accommodations regardless of whether they disclosed before hiring, during the process, or days, months, or even years later. There is no statute of limitations on requesting accommodations, and here’s why:
- An individual may have had a bad experience from a previous employer where he did disclose during the application process and chose to be up front and honest, but then it backfired when the employer made decisions not to continue with the process.
- When an individual is starting a new job, she may not be aware of the specific accommodations she may need, or if she will need them at all. She may not really know what the job entails until she is actually performing the tasks.
- An individual may just be uninformed about his rights under the ADA and his ability to request accommodations at any point in the employment cycle.
The Equal Employment Opportunity Commission (EEOC) says the following in its Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act:
“An individual with a disability may request a reasonable accommodation at any time during the application process or during the period of employment. The ADA does not preclude an employee with a disability from requesting a reasonable accommodation because s/he did not ask for one when applying for a job or after receiving a job offer. Rather, an individual with a disability should request a reasonable accommodation when s/he knows that there is a workplace barrier that is preventing him/her, due to a disability, from effectively competing for a position, performing a job, or gaining equal access to a benefit of employment. As a practical matter, it may be in an employee's interest to request a reasonable accommodation before performance suffers or conduct problems occur.”
Let’s look at a couple of examples:
Brett has an intellectual disability. He was scheduled for an interview for a new and promising job. When he asked to have his job coach present as an accommodation, the job interview opportunity was suddenly withdrawn. Brett decided that the next time he had an interview, he would go it alone and not mention the need for a job coach.
Ruthie was starting a new job in a retail area that she knew she would love, but she wasn’t really sure what accommodations she would need, if any at all, because her past experience was not in retail, but rather in administrative office work. She decided to wait to disclose until she actually needed specific accommodations rather than talk in hypotheticals.
After disclosing her disability on employment applications for years and never getting one call back, Suri felt that her disclosure must have led to each dead end because she was fully qualified for the positions she was applying for. After a call to JAN, Suri realized her rights and decided not to disclose until further on in the process.
Jake took a job at a meat processing plant working with knives. On his starting day when training was about to begin, Jake informed the employer that he had uncontrolled epilepsy and could not use the knives or any other sharp equipment. He demanded a reassignment, an accommodation Jake felt he was entitled to under the ADA. Now Jake’s situation is one where disclosing during an interview is very likely a good idea, because Jake may not able to perform the essential functions of the position he was hired for, even with accommodations. His request for a reassignment isn’t his right under the ADA because it isn’t available as an accommodation to new hires who are unqualified for the jobs they were initially hired to do.
Some individuals feel that their disability is such a part of them that they want to share that information with prospective employers at the start of the hiring process. Others feel they will only disclose if it becomes absolutely necessary. Some have had such bad experiences that they have determined they will never disclose, and as a result, lose their jobs when accommodations may have kept them working effectively.
Here are a few points from the EEOC’s Technical Assistance Manual For Title I of the ADA:
- An employer must provide a reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability unless it can show that the accommodation would impose an undue hardship on the business.
- Reasonable accommodation is any modification or adjustment to a job, an employment practice, or the work environment that makes it possible for an individual with a disability to enjoy an equal employment opportunity.
- The obligation to provide a reasonable accommodation applies to all aspects of employment. This duty is ongoing and may arise any time that a person's disability or job changes.
- An employer cannot deny an employment opportunity to a qualified applicant or employee because of the need to provide reasonable accommodation, unless it would cause an undue hardship.
- An employer does not have to make an accommodation for an individual who is not otherwise qualified for a position.
What does this mean for employers? Being well versed in and having an ample understanding of the ADA is crucial not only in determining what your rights and responsibilities are, but also the rights and responsibilities of job applicants, interviewees, and employees in order to provide full, honest, and fair employment opportunities for all. If an applicant or an interviewee asks for an accommodation, do your best to co-operate so that you can verify the skills the individual has, determine whether he is qualified for the position, and decide if he would be a good fit. To discuss what to do in questionable circumstances or areas of doubt, you can contact JAN directly for one-on-one guidance.
What does this mean for applicants/employees? It means that understanding your rights and responsibilities is crucial to providing the best opportunity to represent yourself and your skills to the employer. If no accommodation is needed for the application or the interview process, you might seriously consider postponing the disclosure conversation until after you get a job offer. A job offer, once given, is more difficult for an employer to withdraw without good reason. If an employer withdraws an offer based on medical information, it must show that the reason for doing so was job-related and consistent with business necessity. Feel free to contact JAN for disclosure guidance.
So now you know….