When Does an Employer Know an Employee has a Disability?

An employer can become aware of a disability in many different ways. Sometimes a disability disclosure is obvious and sometimes the disclosure is much more subtle. HR Representatives must recognize when a disclosure has been made as this knowledge may create an obligation to enter the interactive process

When the Health Condition is Visible

One of the most obvious ways an employer becomes aware of a disability is if the health condition is visible. An applicant using a wheelchair to arrive to an interview is an obvious disclosure the individual has a substantial limitation to the major life activity of walking although it may not be obvious what the health condition is. The employer does not need to know the type of health condition or diagnosis to be aware that there is a disability.

When the Employee Informs the Employer

Learning an employee may have a disability, i.e., limitations, from a source other than the employee requires the HR Representative to assure the source is credible. Examples of sources include but are not limited to:

  • a coworker may advise the employer that a peer has a condition or is taking medication,
  • a supervisor overhears two employees discussing seeing the same psychiatrist,
  • an employee makes several sick leave requests stating about needing to see someone about stress,
  • the DOL Health Certification identifies the employee is on prescription medication and there may be side effects, or
  • the employer receives a note from a doctor requesting the employee be granted more breaks during the day due to fatigue from treatment.

In each of the above examples, the HR Representative must research to determine the credibility of the information. Was the coworker directly informed by the employee of the condition, are they good friends? Did the supervisor overhear joking and humor or a more serious conversation? Is the employee joking or serious concerning the appointments?

Other Information Sources: Employee Family Member

A family member may contact the employer and disclose information of a health condition. HR Representatives may listen to the family member but are not to disclose any employment information to the family member. HR Representatives may also refer these contacts to Faculty and Staff Disability Services (FSDS). HR Representatives should contact the FSDS office to advise of a referral. Receiving information from a family member may be considered the same as the employee disclosing the information and referral to FSDS, if needed, assists the employer, employee and family member in moving to next steps in the interactive process, as applicable.

The Employer Observes a Significant Change in Work Performance

It may be that there is no verbal or written communication regarding a health condition from the employee or from others; however, an employer may become aware of a health condition through a change in the employee’s behavior or performance. If there is a long-term employee who has always been dependable and even-tempered and begins missing deadlines and yelling at coworkers, the employer should begin performance coaching and ask if there is anything the employee is aware of that may have caused this change. This gives the employee opportunity to disclose health concerns, if they exist, and if they do allows the employer opportunity to begin the interactive process to help the employee. If the employer did not previously know of a condition and the behavior is significant enough to require performance coaching, performance and consequences should continue.

Summary Points

  • The employee’s disclosure obligates the employer to determine if the disability or medication influences work and if so, to start the interactive process. Keep in mind the interactive process, while addressing the limitations that exist because of the disability, does not mean performance expectations are to be waived.
  • Accommodation or health information is confidential and should not be shared with the employee’s coworkers or family