First Reference company logo

First Reference Talks

News and Discussions on Payroll, HR & Employment Law

decorative image

Employees with disabilities: disclosure v. privacy

hideandseekLooking at your workforce, as an employer or human resources professional, you might be hard put to identify workers that have any physical challenges or disabilities such as diabetes, asthma, arthritis, cancer, learning disabilities, epilepsy and various forms of mental illness. One of the most difficult decisions employees or applicants have to make is to decide whether to inform their employer or prospective employer of their non-obvious disabilities. Why would they choose to hide this information? To avoid actions that discriminate against them. Employees/applicants are aware of the possible consequences, both in terms of outcome of a job search as well as their own job satisfaction once employed. Disclosure of a disability can be a negative or positive experience (or both), depending on views, prior education and values held by the employer, co-workers, insurance companies and the employee.

Applicants or employees may choose not to disclose their disability for reasons such as:

  • They can meet the inherent requirements of the position without the need to disclose
  • Their disability may be in remission and therefore not be considered relevant to the process
  • The disability has no effect or impact on the applicant’s/employee’s ability to do the job
  • They do not consider their condition a disability
  • Fear that the employer will focus on the disability and not their ability

However at some point, the employee with an invisible disability may find it necessary to reveal some information about their disability and must balance their right to privacy with disclosure.

One important point to note right away: under the law, an employee is not required to disclose a disability at any point unless an accommodation is required.

However, what employees need to understand is that there is a valid reason why an employer should know about any non-visible disabilities. There are associated risks in not informing the employer about a disability; health and safety, work performance and the duty to accommodate come to mind. Under occupational health and safety legislation across Canada, employers have to make sure that all their employees are safe at work. To be able to do this, the employer needs to know about their employees’ disabilities or medical conditions, and assess any possible risks due to them. The risk assessments are based on the individual’s circumstances, as each situation and each workplace is different.

Under human rights legislation across Canada, employers have a duty to accommodate an employee who suffers from a disability as defined in law. The definition of disability under human rights legislation varies in each jurisdiction and is very broad to encompass physical, mental, sensory and intellectual disability. It is unlawful to discriminate against someone or treat them unfairly because of their actual or assumed disability. The employer must accommodate such disability to the point of undue hardship. Under this duty to accommodate, employers are expected to make reasonable adjustments to help the employee perform the work they were hired to do and to keep their job if they are still able to do so despite their disability. If the employer does not know about an employees’ disability, adjustments will not be made and employees can’t hold them responsible for not making any.

Co-workers or an employer should know how to handle a crisis should one arise. If employers and co-workers are aware of a disability, they may be better able to help if the employee has seizures or hypoglycemic crisis or any other consequences related to the disability. If the employee tells the employer and the people they work with about the related symptoms and explains how they can be helped, the disability can be better managed and the negative consequences prevented. Often people feel more comfortable with a disability if they understand it and know what to do, for example, if someone has a seizure. In other words, disclosure might make the employee and co-workers more confident about what will happen if the employee has a seizure at work. And it might be helpful to have some awareness training at work on such a disability.

If the employer knows about a non-visible disability, they may make changes to the employee’s work or environment to make it safer. If the employer does not know about a non-visible disability it will be hard to hold them responsible for not doing their health and safety assessments and accommodating an employee’s disability.

Employers are not expected to diagnose a disability, but managers and supervisors should be aware of changes in employee behaviour and workplace performance. In some cases, managers/supervisors may need to speak with an employee privately to assess whether a disability may be a factor in a workplace performance issue. If a disability is suspected, the manager/supervisor must support the employee in seeking help and requesting accommodation.

There are good reasons why employees need to disclose, including the following:

  • Regular medical appointments conflict with work schedules
  • Full-time work leads to unacceptable level of anxiety or pain
  • An individual might find that, after a few hours at a new job, the physical setting for work interferes with their concentration or increases stress
  • Work performance is suffering due to pain, stress or anxiety
  • Medical intervention and time off to recover is required

Unfortunately, there are no right answers. No matter what the reason is, for an employee/applicant to consider disclosure, the work environment will be a great indicator of an employee’s willingness to disclose non-visible disabilities. The employer’s recruitment and selection process, policy manual/employee handbook and other internal documentations are also methods applicants/employees will use to assess the potential reaction of employers to disclosure. Most likely, an employee will decide to disclose a disability only if it supports their objective of getting a job, keeping a job or performing well at their job. The employee will decide if, when and how to disclose. They will choose the route which is most comfortable for them.

Thus, employers should make sure to build a work environment that is inclusive and fosters work adjustments; makes employees understand the risks of not informing the organization about a disability; opens opportunities for people with disabilities; offers supports to persons with disabilities; and makes people comfortable with disclosing their disability when necessary.

Some important points to keep in mind about information sharing under these circumstances:

  • Only information relevant to the work situation needs to be shared—the point is to support the employee with appropriate accommodation
  • Medical information shared between the employee and employer is private and must be kept confidential
  • Every person is different, so accommodation requests should be considered on a case-by-case basis
  • Do not assume that someone is unable or will be unable to perform their work based on a disability

Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor

Follow me

Yosie Saint-Cyr

Managing Editor at First Reference Inc.
Yosie Saint-Cyr, LL.B., is a trained lawyer called to the Quebec bar in 1988 and is still a member in good standing. She practiced business, employment and labour law until 1999. For over 15 years, Yosie has been the Managing Editor of the following publications, Human Resources Advisor, Human Resources PolicyPro, HRinfodesk and Accessibility Standards PolicyPro from First Reference. Yosie is one of Canada’s best known and most respected HR authors, with an extensive background in employment and labour across the country. Read more
Follow me

Latest posts by Yosie Saint-Cyr (see all)

Kindle

, , , , , , ,

Comments are currently closed.

2 thoughts on “Employees with disabilities: disclosure v. privacy
  • MRWED says:

    I think it should be disclose because keeping disabilities in private might result to future problems. If you disclose it at least the employers will know what work is suited for you considering that you have disabilities.

  • Adam Gorley says:

    Hopefully in Ontario, the implementation of the AODA will make our society and work culture more open and accepting to not only actual disabilities but the idea of disability and help people with invisible as well as visible disabilities come out and make their conditions known.