Disclosing Your Disability

It is your right to choose whether or not you disclose your disability. Disclosing your disability means you are telling your employer – or potential employer – that you have a disability. Your employer does not have the right to ask you about your disability during the hiring process before a job offer is made. Even after a job offer, there are legal limits about when and what an employer can ask about disability.

Whether to voluntarily disclose your disability or not is based on your personal needs, preferences, and comfort level with your disability. It is wise to carefully consider disclosing your disability when you apply for a job, start a new job, become disabled, or become aware that the nature of your disability is changing.

The Benefits of Disclosure

One of the reasons you may decide to disclose your disability is that it lets you request a reasonable accommodation during the application process, to perform the job duties, or to access benefits. When you tell your employer that you have a disability and that you need an accommodation, you begin a process that is unique to you and your particular circumstances.

Disclosure Example

If all applicants for a job need to take a timed exam, a person with a traumatic brain injury can request more time than everyone else. To do so, he will have to tell the employer he has a disability and why the disability needs the time extension. Even though the employer now knows the person has a disability, the ADA makes it illegal for the employer to use this information when making the hiring decision.

The employer cannot lower the score of the employment exam because a person with a disability used an accommodation. The employer needs to show, for example, that the slower speed to finish an exam related to job duties is evidence that the person will not be able to perform the essential functions of the job.

Another reason that you may choose to disclose your disability to an employer, or potential employer, is if you have an impairment that is readily visible to others. As noted, you are not required to voluntarily disclose your disability during the hiring process or after you have been offered a job. If you decide you want to address your disability upfront, you may be able to educate your employer or the workplace in ways that can avoid some of the stigma, discrimination, and misinformation others may have about your disability.

How Much to Disclose

If you decide to voluntarily disclose your disability to your employer, the amount of information and detail you give your employer about your disability is entirely up to you. When your employer has a legitimate need to know about your disability, it is acceptable to provide only what information is necessary to address the performing of essential job functions. For example, an employer may have a legitimate need to know more about your disability when you ask for a reasonable accommodation. Or your employer may have questions about whether there has been a change in your disabling condition if you stop performing your job safely after having a good safety record. There is no need, in an interview or while employed, to volunteer information beyond what is necessary to facilitate your employer’s legitimate disability-related questions and any reasonable accommodations you ask for.

The Equal Employment Opportunity Commission (EEOC) has information that can provide guidance about whether your employer’s questions are lawful. You can also contact staff at the Arizona Center for Disability Law.

Example

An employee tells her employer that she has a medical condition that is made worse by chemical cleansers and perfumes. She then requests that only scent-free or natural cleaning products be used in the office, that other employees no longer be allowed to wear scented products, and that her workspace be placed in a location that is well-ventilated.

Some employers will accept your request for a reasonable accommodation and not ask for more detailed information about your disability. Other employers may want you to give them specific documentation of your disabling condition, as a basis for the reasonable accommodation. If you cannot show that you have a disability, or that the disability-related accommodation you are requesting is necessary during the hiring process, in performing your job, or in accessing job benefits, the employer has a right to deny the accommodation.

For more background on what to do when your employer asks for medical information when you ask for an accommodation, read this article by the Job Accommodation Network.

The Responsibilities of the Employer

Generally, the only question about your disability that a potential employer is allowed to ask is:

“Can you perform the essential functions of your job with or without reasonable accommodation?”

If you have an obvious disability, or you have voluntarily disclosed your disability to a potential employer, and the employer has a reasonable belief that you would need accommodations because of the disability, he may ask whether you need accommodations and how you would perform the job with those accommodations.

A potential employer cannot ask questions that would require you to give information about your disability during the hiring process. For example, a potential employer is not allowed to ask you:

  • How many sick days you were absent from your previous job
  • If you have ever applied for Workers’ Compensation
  • If you are taking prescription drugs

Once you are offered a job, an employer can require a medical examination, if all employees for that job are asked to pass a medical examination. Attendance may be a requirement of your new job. The employer can also state that you cannot use certain medications while you are at work. However, the employer must justify that these requirements are necessary for that specific job and to conduct its business.

If you tell your employer about your disability and ask for a reasonable accommodation, your employer is allowed to ask for some kind of documentation of your disability to understand how to best accommodate it. However, the employer is never allowed to disclose your disability to anyone, except in cases where managers and supervisors need to know about your limitations or accommodations, as well as first aid and safety personnel who may need to know how to assist or treat you in case of an emergency.

For information about your rights during the job application process, take a look at this EEOC information sheet about Job Applicants and the ADA.

Confidentiality

The ADA requires that employers keep any medical information they have about a disability-related inquiry or medical examination strictly confidential. This includes medical information from voluntary health or wellness programs, and any medical information voluntarily disclosed by an employee. Employers may share such information only in limited circumstances with others directly involved with the operation of the business, for example, supervisors, first-aid and safety personnel, and government officials investigating ADA claims.

Disclosing Is Your Right

Remember, it is your right to choose whether to voluntarily disclose your disability during the hiring process and during employment. However, if you choose not to disclose your disability at the time you determine that you need an accommodation, and you are unable to perform the essential functions of your job, your employer can take disciplinary action, or fire you if you can’t otherwise do your job. If that happens, you cannot claim that the employer discriminated against you because you have a disability.

Keep in mind that there are times when an employer may ask a question about disability without violating the ADA. For example, during a medical examination a prospective employer may ask all applicants for a medical history as part of the examination that they must pass for the conditional job offer. If an employee has been on leave due to an injury or illness, the employer may be able to ask questions about his or her fitness to return to work. If you have questions about what the employer may lawfully ask you about your disability in certain situations, you can consult with the Arizona Center for Disability Law, or review the EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA).

Disclosure Decision Tree

Virginia Commonwealth University has designed a Disclosure Decision Tree tool that can help you decide whether it makes sense to you to disclose your disability to your employer and figure out how to do so. You can practice disclosing your disability with a close friend, family member, or career counselor to help you with your comfort level and skills.

The Americans with Disabilities Act Amendments Act Of 2008

The Americans with Disabilities Act (ADA) Amendments Act of 2008 makes several significant changes, including changes to the definition of the term "disability." Here is a list of specific changes to the ADA made by the ADA Amendments Act.