The term 'disclosure' refers to the personal decision to tell another person or institution about a disability. There is no legal obligation for an employee to disclose their disability, unless it is likely to affect their ability to meet the inherent requirements of the job. The inherent requirements of the job are tasks that must be carried out in order to get the job done. Not all of the requirements of a job will be inherent and the focus should be on achieving results rather than the means for achieving those results.
Once an employee has disclosed a disability, the employer is then required to consider appropriate responses, including training or work related adjustments, to accommodate the person with disability. Remember that state and federal laws prohibit discriminating against someone because of disability
Once an employee has disclosed a disability, your main obligations under the Disability Discrimination Act (DDA) 1992 are:
- not to discriminate directly by treating a person with disability less favourably
- not to discriminate indirectly by treatment which is less favourable in its impact
- to make reasonable adjustments where required
- to avoid and prevent harassment of all employees.
The questions an employer can ask about a disability or injury relate to:
- any adjustments required to ensure a fair and equitable interview/selection process
- if or how the disability may impact on the inherent requirements of a job
- any adjustments that may be required to adequately perform the inherent requirements of the job.
Any other questions about an individual's disability are inappropriate, including questions about:
- how the individual acquired their disability
- specific details of the individual's disability.
Choosing to disclose
When, how and if a person with disability chooses to disclose is often affected by factors such as:
- the type of disability
- the type of employment opportunity
- whether the disability is visible or not and how this might affect the prospective employer's judgement of the person's ability to perform particular duties
- the need for workplace adjustments or supports
- the attitudes of the interviewers, co-workers or managers.
An employee with disability is only required to disclose if the disability will affect their job performance or ability to work safely.
For individuals with an obvious disability, disclosure is usually inevitable. When disclosure occurs, it is important to treat the person with respect and dignity, and refer to the individual as opposed to the disability. Phrase all questions around any possible adjustments that may be required.
Ask: 'Will you need any adjustments to work practices or equipment to do this job?' Rather than, 'how can you do this job?'.
Individuals with a disability that is not visible have more choice as to whether or not they disclose their disability. Individuals with non-visible disability may choose not to disclose, as the disability may not affect their job performance. In particular, many people with mental illness are unwilling to disclose as they are concerned about being stigmatised and discriminated against.
Mental illness is often episodic, so a person who has a psychological or psychiatric disability may not have symptoms that affect their job performance all the time. A person who has experienced an episode of mental illness in the past will not necessarily have a repeat experience.
Other non-visible disabilities may include back injuries, vision or hearing impairments, arthritis and medical conditions such as diabetes.
An employee is only required to tell their employer about what medications they are taking if there is a likelihood of side effects occurring that will affect their work performance.
Disclosing information to other parties
Information about an employee's disability will often involve sensitive personal issues. To encourage employees to be open with you about disability issues you need to be able to assure them that any information they provide will be treated appropriately.
In order to share the information about an individual's disability with other people within your organisation (eg Human Resources), you must get written consent from the individual.
State and federal privacy legislation require organisations to protect all confidential personal information, including information about an individual's disability. As an employer, it is appropriate for you to inform individuals with a disability about your organisation's procedures in the collection, use and protection of all confidential material.
It is important to remember that you are required by law to respect the individual's right to privacy. Failing to protect confidential personal information in relation to a person's disability may involve or lead to discrimination in some circumstances.