ADA & Disabilities

Now Hear This: ADA Covers “Invisible Disabilities,” Too

Even if you can’t see the results of a worker’s disability, you need to respect them, according to the Americans with Disabilities Act. Here are the rules to follow.

Every time we look at the Americans with Disabilities Act (ADA), it seems there are additional disabilities being covered. That’s not really happening, of course. The law continues to protect from discrimination any individual whose disability disrupts a major life activity. It’s just that there are many such disabilities.

The latest to be highlighted are so-called “invisible disabilities,” including hearing impairment and mental health issues. Neither is usually apparent to the eye, but both have enormous impact on the people who suffer from them and on their employers.

Hearing impairment, ranging from actual deafness to hearing loss that impairs everyday communication, afflicts some 28 million to 31 million Americans and is often perceived by employers as detrimental to efficient operation of their workplaces, or even as a safety risk.

Mental health problems, including diagnosed bi-polar illness and chronic or clinical depression, cost more than $44 billion in lost productivity last year, according to the National Mental Health Association, with much of it coming from prolonged absence from the job. The American Foundation for Suicide Prevention, for example, reports that depression sufferers take an average of 9.9 more sick days a year than victims of diabetes and other serious illnesses.

ADA provides the same protections for these individuals as those with any other covered disability. Employers must require workers to perform only the essential functions of a job and must make reasonable accommodations to enable the worker to do so. Hearing impaired workers, for example, might require an especially quiet workspace, an amplified phone or a TTY teletypewriter, or a sign language interpreter. Those with mental health issues might need an altered work schedule, access to mental health counseling, or the chance to work from home.

As with any other disability, your responsibilities under ADA remain the same:

–You must judge all employees only on their ability to carry out the essential functions of the job, as spelled out in the job description. Reasonable accommodation must be provided to help them carry out those functions, as long as it does not put an “undue hardship” on your business. The burden, however, is on the employee to request an accommodation.

–In hiring, you cannot ask about disabilities before making an offer, though you can ask if a candidate needs any accommodations to apply. Once a conditional offer is made, or the person is hired, you can require medical exams or ask for medical proof that a disability exists.

–A person can be protected under ADA if he or she is “perceived” as having a disability, even if there’s no proof the disability exists. In one case, co-workers repeatedly called an employee “crazy.” The worker, who had never been diagnosed with a mental health problem, filed a discrimination claim under ADA and won.

One issue that’s come up concerning “invisible disabilities” is the attitude of other workers about someone seemingly getting special treatment, such as reduced hours, with no apparent reason for it. How do you handle this potential morale issue without divulging the nature of the employee’s condition?

“Explain to employees that [you] are acting for legitimate business reasons,” says columnist and employment law attorney Jacqueline McManus, “and/or that it is company policy to ensure employees’ privacy.”