Employment attorney Joan Bechtold recently sat down with Pat Daily to discuss perspectives on disclosure in the workplace. Ms. Bechtold has practiced employment law since 1994, and is a founding member of Sweeney & Bechtold, LLC. During her legal career, she has successfully represented employees in numerous discrimination and wrongful discharge cases. Ms. Bechtold has been extensively involved in developing new legal rights and remedies for employees.
InforMS: What are the reasons to disclose, and not to disclose, MS in the workplace?
Joan Bechtold: Every employee or applicant for employment should disclose if they need an accommodation. The biggest problem I see in my practice is that an employee has been having problems with MS for a long time but their employer wasn’t aware of it. I don’t see them until the end of the line, after they have had their third write-up. Now they have their final warning, and now they decide it’s time to tell the employer they have MS. You can’t go back and erase the past. If you have any suspicions that you are going to have performance problems unless you have an accommodation, tell the employer. And do it in writing, so there is a record that says, “I am a qualified person with a disability. I have MS. I’d like to sit down with you to go through the interactive process to find a reasonable accommodation of my disability.”
InforMS: What is a disability in terms of the Americans with Disabilities Act (ADA)?
JB: To be defined as a disability under the ADA, you have to show that you are substantially limited in a major life activity. After the ADA was amended, MS became one of the medical conditions that is almost considered a per se disability under federal law. Prior to that, especially in Colorado, it wasn’t necessarily considered a disability, especially when it was relapsing-remitting, because sometimes someone might be able to do everything and other times they might not be able to do anything at all. That caused the courts to say “MS is episodic in nature and therefore not substantially limiting.” But now it is much easier now to say this is a disability.
InforMS: What does it mean for someone with MS to say that, under the ADA, the disease is considered a disability?
JB: Under both state and federal antidiscrimination law, that gets you the right not to be discriminated against based on your MS and it also gives you the right to reasonable accommodations if you need one in order to perform major functions of your job.
InforMS: Whose responsibility is it to ask for accommodations and decide what those accommodations are?
JB: When there is a need for accommodation, it is the employee’s obligation to bring up the issue. In some cases, if the need for an accommodation is obvious, the employer might raise the issue, but for the most part the employee should start the discussion. At that point, the employer is obligated to engage in what is called the interactive process. This is where you sit down with the employer and talk about what the problem is and what you need. The employer has an obligation to provide an accommodation unless it would create an undue hardship. If the employer can’t accommodate you in the job you have, it is obligated to place you in an open position for which you are qualified, even if it is a demotion. They are obligated to place you in the job—not tell you that you can apply for the job—unless you’re in a special situation, for example a union environment where there is seniority involved and you have to bump somebody out of a job. But if it’s an open job, they have to place you in it if you are qualified.
InforMS: Who determines what constitutes a reasonable accommodation?
JB: The letter that initiates the interactive process might say something like “MS makes it difficult for me to walk and this is a problem when I need to use the bathroom, so I would like to sit down with you and engage in the interactive process to discuss reasonable accommodation, including…. ” At this point you may want to include some suggestions about solutions. If there are multiple ways to accommodate a situation, the employer is not obligated to pick the one you like; they can pick any one that will fix the situation.
Another thing you want to do is get the doctor on board. Employers can ask for a letter from your doctor detailing what accommodations you need. Work with your doctor because ultimately, they will be the ones who will have to write something to substantiate your request for accommodation. The letter from the doctor needs to include good information about what the issue is and what you need.
InforMS: Is it important to get your doctor on board ahead of time?
JB: Yes. Patients often underreport what is going on with them and the problems they have. I see this all the time. There is a problem but they have not mentioned it to the neurologist, so when the doctor gets the letter requesting information about accommodations, they don’t know how to respond. The patient has never mentioned the problem, so the doctor doesn’t see them as disabled. If there is communication with the doctor to begin with, you can often avoid this problem.
InforMS: Are there any disadvantages to disclosing a disability to your employer?
JB: There are two different scenarios: before you get the job and after you get the job. If you need to have an accommodation in order apply for the job, of course you do need to ask for it. But unless it is a job with the federal government or a federal contractor, where there is some incentive to hire someone with a disability, I would tell someone applying with a private employer not to disclose that they have MS at the time of the interview. However, there are exceptions to this advice, for example, if you have a period of absence to explain. But for the most part, if you are concerned that they aren’t going to hire you, it is going to be impossible to prove that it’s because you have MS. You aren’t on the inside of that organization, you don’t know who got the job, and you don’t know if they are more qualified than you. So, for sheer proof reasons alone, don’t disclose unless there is a benefit to it for you.
After you are hired, the biggest benefit to disclosure is that you do have protection under the ADA.
InforMS: When you request an accommodation, do you have to say explicitly that you have MS? Or, can you merely say that you have a neurological condition that affects you in some particular way?
JB: It is to your benefit to define what it is, with a name, because it actually protects you more. MS is one of these conditions that is almost a per se disability. Another reason is that most employers know something about MS or know someone with MS, whereas neurological condition is vague and it might be hard for the employer to come up with something that could help you.
InforMS: Are there dangers to disclosure?
JB: Absolutely. That’s why the law is there. You can be retaliated against and treated badly because you have a disability or requested an accommodation. I have seen employees get fired because—once people realize they have MS and could have more problems—the employer decides they don’t want to deal with them. However, those employees have very good lawsuits, because it is clearly illegal to do that.
There are more subtle ways to discriminate. It can be not talking to someone, creating unreasonable goals, excluding someone, talking behind their backs, making them feel like they are not part of the team. However, I do find that, of all the types of discrimination out there, employers tend to be the most ill-informed when it comes to the ADA. A lot of times those cases are far easier to prove than other types of discrimination cases.
InforMS: Although there may be negative consequences to disclosure, if those occur, should an employee with MS report those things to their employer?
JB: Yes, if those things happen, they can be reported as discrimination and retaliation inside the company.
InforMS: In your experience, is it to someone’s benefit to disclose MS if there are any issues going on that could affect job performance?
JB: I think that’s the case. The last thing you want is to be fired for poor job performance when any problem with performance is actually caused by your disability.
InforMS: Even if someone believes that MS does not interfere with their job performance at all, would you still encourage disclosure?
JB: At that point, I might suggest that someone talk to a therapist, if they have one, or their neurologist, or do some additional testing, to find out if that is in fact true. What I have found is that, a lot of the time, that’s really denial. They might want to talk with someone to see.
InforMS: Any last words of preventative advice?
JB: Being honest with yourself. If you are having performance problems, take an honest look at yourself and ask, “Is this caused by my MS in any way?” and if it is, talk to your employer. They will listen to you then. When you are coming to them with a final warning, and you say I have a disability, it becomes a whole different ballgame.