Mayberry* Meets the ADA
Mayberry* Meets the ADA

Categories: Employment

TenikaBy Guest Blogger Linda Carter Batiste, J.D., Principal Consultant with the Job Accommodation Network

The workplace can be like a small town – everyone seems to know everyone else’s business. But there are things that employees may wish to keep confidential and, in some cases, employers have a legal duty to comply with those wishes. One example is employee medical information. Under Title I of the Americans with Disabilities Act (ADA), employers are required to maintain the confidentiality of employee medical information with limited exceptions, such as managers and supervisors who need to know in order to implement a reasonable accommodation.

But what happens when coworkers notice that an employee has a disability or is receiving an accommodation and they start asking questions? Can employers answer the questions? The ADA confidentiality rules go beyond standard medical documents, such as doctor notes and medical questionnaires; it also applies to telling coworkers that an employee has a disability and is receiving an accommodation, so employers should be careful about how they respond when coworkers start asking questions.

According to the Equal Employment Opportunity Commission (EEOC), “an employer may certainly respond to a question from an employee about why a coworker is receiving what is perceived as ‘different’ or ‘special’ treatment by emphasizing its policy of assisting any employee who encounters difficulties in the workplace.” EEOC goes on to state that an employer “also may find it helpful to point out that many of the workplace issues encountered by employees are personal and that, in these circumstances, it is the employer’s policy to respect employee privacy.” (See Reasonable Accommodation and Undue Hardship under the ADA, question 42.)

Perhaps an even better approach is to educate staff before the questions start. Employers may be able to reduce the amount of questions from coworkers by proactively conducting disability and ADA awareness training for all staff. Employers can even provide examples of the types of reasonable accommodations the ADA requires and mention the confidentiality rules. Many times employees are in favor of workplace accommodations once they are aware of them and often, as a result, no longer perceive them as special treatment.

But what about the flip side of this issue? What if an employee wants coworkers to know about his disability and accommodations? In some situations, an employee may want coworkers to know about a disability in order to enlist their help in overcoming limitations.

For example, someone with chemical sensitivity may need coworkers to refrain from wearing perfume. Explaining to them the reason why they are being asked not to wear perfume often helps encourage them to comply. Or sometimes an employee wants coworkers to know about an accommodation to keep them from resenting the employee. For example, someone with multiple sclerosis (MS) and related fatigue may need to work at home a couple days a week, but the employer does not allow other employees to work at home. Coworkers may resent what they see as special treatment and take it out on the employee with MS. The employee may want to talk to coworkers about her MS and explain why she is allowed to work at home in order to overcome any resentment toward her. How do the ADA confidentiality rules affect these situations?

It is not clear under the ADA whether an employee can waive confidentiality rights to allow the employer to disclose medical information, but as long as it’s voluntary, the employee herself can disclose to coworkers. The best approach then is to enable the employee to talk to coworkers about her disability instead of the employer doing it for her. This could be done by setting up a meeting for the employee to speak with coworkers or allowing the employee to bring in a knowledgeable speaker to discuss the disability and related accommodations.

Hopefully, this knowledge can then be used by coworkers in a positive way to support each other and improve workplace productivity.

*Note: Mayberry was a fictional community that was the setting for two television shows, The Andy Griffith Show and Mayberry R.F.D.

Linda Carter Batiste, J.D., is a Principal Consultant with the Job Accommodation Network (JAN), specializing in the Americans with Disabilities Act and other disability related legislation.  She has been with JAN since 1992 and is a member of JAN’s management team. She has a law degree from West Virginia University and is a member of the West Virginia Bar, the American Bar Association and the Order of the Coif.

 

9 Responses to Mayberry* Meets the ADA

  1. Howard S. says:

    Interesting Site. I’ve been hoping to ask my share of questions. I’m a graduate student at Central Washington University. I’m writing on ADA titles two and three public accommodations for museums and other cultural institutions. I’ve had a difficult time with finding training opportunities in assistive technologies. I’m suffering from academic poverty. I’ve enjoyed speaking with your folks before. Also when was there a DOJ settlement concerning K-12 field trips. Thank you.

  2. Maria R. says:

    I worked at a place well known by many people since a lot of their bulk od groceries is purchase at this place.
    Long and behold I was working on a particular site of the store doing some cleaning all of the sudden I fell on my back at that time my Supervisor Called a Manager on Duty and such accident was reported and written to keep on their files in case of any problems with my back.
    At that time I took a few days off and all was well at my job. Shortly after the incident I was getting ready to start another day I turned by body slightly and the pain I felt was incredibly something I have never experienced before. Of course I went to Dr. since my pain became an everyday problem I went to the Dr. who send to a Pain management Dr. Needless to say I was place on medical leave my absence for a few weeks was not excepted since their argument was not excepted “MYTHERE COMPANY RULES” so I was giving an ultimating and I either call my Supervisor by Sept 3rd to come back to work. They will consider tat I resigned I am still under the Dr Care. Thank you Maria R. And if you want to write me an email is okay with me

  3. Julie W. says:

    What a good topic to present and discuss at a Chamber of Commerce meeting

  4. Marc B. says:

    While maintaining confidentiality is nice, keeping secrets in the workplace isn’t a good idea. If an employee asks a direct question, they should be given a direct answer. If an employee wants to discuss her/his disability and accommodations, they should do so. While some issues are “personal,” the employee interacts with management, other employees, clients/customers/stakeholders, and the work environment. These interactions are not necessarily personal.

    In the example given, if other employees want to know why Bob is allowed to work at home two days a week, while they aren’t allowed to do so, it is okay to answer, “Bob has a reasonable accommodation that enables him to work at home.” There is no secret or shame to having a reasonable accommodation, or to being a person with a disability. Hiding issues involving disability is a throwback to the bad old days of hiding relatives with disabilities in the attic. There should be no stigma to being a person with a disability and to requesting and receiving a reasonable accommodation.

    EEOC has made a bad call here, in Question 42, and confused “medical” with “disabilty” issues. Not all disability issues are medical. In fact, their answer medicalizes disability issues. In addition, there is no right to privacy in the ADA. Heck, there isn’t even a right to privacy in the Constitution. Does anyone know if the issue has ever been litigated? I’ll bet that no entity has ever been found guilty of discrimination by a court because it said that “Bob works at home two days a week as a reasonable accommodation.”

    • Howard S. says:

      Check out the history of the the disability rights movement and The History of Disability Rights, (Temple University, 2003)/
      Think of it as respect. Think of it as just a bit more than common sense. Think of it as hard won by litigation.

  5. Ovez J. says:

    If such request to dean of Law school was acquiesced, I, being a recipient of accomodations as extra time and the general law school environment with reference to sensitivity, I resented. I was post-spinal fusion of cervical spine, pain, limited movement of dominant right arm and the medications , seriously hampered my physical functions.
    Nobody needs to know because I was actually mocked for my cervical spine collar and maliciously teased as to the way I walked. yes, in law school, post undergrad higher education.
    What I am trying to get at, is certain info will be used in bad-faith by certain people as in this case a fellow employee may use this info and create a hstile untenable environment thereby involing the Vocation Rehabilitation Act or in Employment, serious liabilities for the employer.

    • Howard S. says:

      The VRC would have to ask permission of their client to discuss the matter should the topic come up. The VRC’s responsibility includes workplace modification accommodations, and assistive technologies as needed. As for a personal choice, if I were prone to something as the result of a calamity, and recognizing that many conditions are degenerative would use the opportunity to educate my co-workers.

  6. Ovez J. says:

    It does not only presents in the workplace but in schools and colleges.
    For instance, in law school, a comment on the listserve, a law student chastised the Dean for allowing certain students to receive accomodations as extra time, notes presenting an unfair advantage. Student DEMANDED information to be disclosed publicly as to what conditions etc,… Student stated he had a right to know. Since ADA was in its nascency, there was no rulings or guidance to allow or disallow the fulfillment to the request.

    • Howard S. says:

      I once attempted a masters in urban and regional planning. I requested reasonable accommodation to avoid classes which I believe are part of a culling process that begins with the SAT and continues with the GRE to winnow. These required classes were impossible This was at a time when a masters in planning following a BA in Tribal Planning was a sure way to get hired. Even with such a failure on my resume I became a US Peace Corps Volunteer to return home with the promise of a “non-competive placement” entry employment to a federal hiring freeze. I think you would find your answer in reading NFB v. Penn State University. I enjoyed it.

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