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Disclosing Disability

What nurses and other healthcare workers need to reveal in a job interview.

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The disclosure of medical information is a highly sensitive and personal issue. 

While it is generally not required, the healthcare industry poses additional complexity because of safety issues and the potential for transmission of diseases and/or causing physical harm that is not as prevalent in other fields. 

As such, there is a fine line between the need to disclose information that is relevant or potentially relevant from an ethical standpoint and providing too much information. 

"You are only required to disclose a medical condition when someone requires an accommodation or request for leave under the Family Medical Leave Act," said Barbara A. Otto, CEO of Health & Disability Advocates.

"With regard to healthcare job seekers, there are some specific conditions that ethically require sensitivity around reporting. Contagious medical conditions and/or infectious conditions that may be readily passed on to other individuals ethically require individuals to disclose to their employer."

Under the Law

Health conditions are highly protected. Legally, healthcare job seekers are not obligated to tell potential employers about their healthcare status at any point during the application process or during employment, if hired.

"If a job seeker and/or employee has a medical condition and/or physical limitation that does not preclude him or her from meeting the job requirements, it is not necessary to reveal the condition to an employer," confirmed Lauren Goldschmidt, rehabilitation division manager at ServiceSource, a leading nonprofit disability resource organization.

"An employer is not permitted to ask about any pre-existing or current medical conditions," she said.

However, healthcare workers may have additional obligations to provide more detailed medical information based on the nature of the work performed. 

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For example, where issues of patient safety could be created by virtue of a medical condition, there is arguably both a legal and ethical requirement to disclose such information. 

"As a matter of law, an employee must be physically able to perform a given position with or without reasonable accommodation," said Stacey McKee Knight, head of the employment practice and capital partner at Katten Muchin Rosenman LLP. 

"If, for example, a nurse had Parkinson's disease and had difficulty stabilizing his or her hands for periods of time, such condition could interfere with his or her ability to adequately perform the essential functions of the position; and if no accommodation was possible, he or she would be unable to perform the position and would need to have disclosed that initially."

While there is no strict requirement for disclosure of such information at the outset, an employee's ability to perform the functions of the position is an appropriate inquiry and where there are medical conditions or issues that could compromise that ability or where some accommodation could be required, disclosure at the outset would assist in determining whether a particular employee or applicant is qualified for the position.

"If a person has a pre-existing condition that does not currently prevent him/her from completing the physical demands of the job, that employee is not legally obligated to disclose a medical condition," Otto said.

Most employees would prefer not to reveal a medical condition or physical limitation to avoid the disclosure of personal information. 

"If, however, an accommodation would be required, revealing the condition or limitation at the outset would assist both parties in determining whether the employee is able to perform the functions of the position," Rosenman says. "If an employee cannot perform without an accommodation, failing to provide this information at the outset could create difficulty in the employee actually beginning work and may also create tension in the relationship."

The ADA

A reasonable accommodation defined by the Americans with Disabilities Act (ADA) is "any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions.

"Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities."

"Under the ADA, employers have the right to ask if the applicant can perform the essential duties of the job sought, with or without reasonable accommodation," noted Mark D. Nelson, a partner in the Labor & Employment Practice Group of the Chicago-based law firm Drinker Biddle.

"If the job seeker with a disability can answer 'yes' to that question, there should be no discussion about a disability, unless the disability is observable such as blindness (walking cane or guide dog) and the employer has a legitimate question about the job seeker's ability to perform given the observable disability."

Accommodations are and should be made when medically and legally required.

"An employer must make reasonable accommodation for qualifying disabilities under the ADA for both applicants as well as employees. But, the employee must always be qualified to perform the functions of the position, with or without reasonable accommodation," Rosenman said. "As a result, if an employee cannot meet a specific requirement even with an accommodation, he or she would not be qualified for the position and no further accommodation would be required."

Types of reasonable accommodations may include job restructuring, modifying work schedules, modifying equipment, modifying training, and providing interpreters and/or readers.

"If being able to lift 30 pounds is an essential function of a job, and a job seeker is unable to lift 30 pounds due to his disability, this job seeker is not a qualified candidate and a

reasonable accommodation does not need to be made," Goldschmidt explained.

"However, if the job seeker is able to lift 30 pounds while using a certain type of equipment, the job seeker may be qualified with a reasonable accommodation. If being able to lift 30 pounds is a marginal function, redistributing this function may also be considered a reasonable accommodation."

Pros and Cons of Disclosure

If one does disclose a medical condition or physical limitation during a work interview, it could be beneficial down the line.

"If your medical condition is causing you difficulty, disclosure can often alleviate a number of concerns from employers when they understand there is a medical condition that is causing the difficulties you are working under," Ott said. "For instance, an employer would not consider you to be 'lazy' if you ask someone else to lift a heavy object due to a back condition. If something happens that affects your work due to a medical condition, such as an epilepsy seizure, it's already documented and work can be more easily mitigated."

The one drawback to this is it may look like an employee is getting special treatment and co-workers who don't know about the disability may get upset. Deciding whether to reveal the disability to these co-workers is another issue one must face.

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Nelson said revealing a disability creates the opportunity for an employer to engage the job seeker in a "can do" discussion. "That is, how can the employer and the job seeker make the seeker successful in the position sought," he said.

If a job seeker reveals a disability and is not hired, she could file a discrimination charge with the Equal Employment Opportunity Commission and/or a state agency claiming she was not hired because of her disability. Of course the employer would have to show the disability was the reason she was not hired, as opposed to a more qualified candidate being hired instead.

A downside to revealing something is that not all employers are as understanding as one would hope. Revealing a medical condition or physical limitation can have unintended consequences, such as the risk of being passed up for promotion.

Every situation in which an employee has a disability and requires accommodation must be treated independently of other situations because each person is affected differently by a disability.

In addition, EEOC regulations interpreting the 2008 ADA Amendments Act has expanded the definition of a disability, and healthcare providers are seeing an increase in the number of situations in which the reasonable accommodation discussions are required.

Keith Loria is a freelance writer for ADVANCE.




     

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