How should I respond when an employee tells me they have a disability?
Stan, Small business owner.
Hi, I'm Stan.
I run a small business with only six employees.
I want to make sure I'm following the law and prepared to support my employees
with disabilities.
How can I be prepared if an employee tells me they have a disability?
Suzanne, MOD.
Thank you for creating a supportive and inclusive workplace.
As a company with at least six employees,
you have a legal obligation under Massachusetts law,
Chapter 151 B, to not discriminate
against employees with disabilities.
Businesses with 15 or more
employees have legal obligations under both Massachusetts law
and the Americans with Disabilities Act,
or the ADA.
Naomi, MOD.
If an employee tells you they have a disability, it's
best practice to thank them for trusting you with the information.
An employee disclosing their disability could be a good sign
that you've created a workplace culture of respect and trust
and let the employee steer the conversation.
Disclosing their disability doesn't automatically change
anything about the employee or their relationship with you.
The conversation may end there, or they may want to share more.
Follow their lead.
Stan, Small business Owner.
Okay.
It sounds like I should just be respectful and take the disclosure
as a good sign that we have a strong working relationship.
When might a disability disclosure come up?
Suzanne, MOD.
Employees don't legally have to tell you they have a disability
unless they're asking for a disability related,
reasonable accommodation to do their work.
There are a few reasons an employee might tell you they have a disability.
Two of the most common are: one,
they just want you to know. An employee might want to share
this part of their identity with you. And two,
they're asking for a reasonable accommodation to do their work.
A reasonable accommodation is a change to a policy,
the work environment, or how things are done
that removes a disability related obstacle in employment.
Regardless of why an employee is disclosing,
remember to thank them.
Be respectful and let them lead the conversation.
Stan, Small business owner.
What follow up questions can I ask after an employee
discloses?
Naomi, MOD.
There's no need for any follow up questions
if the employee isn't asking for an accommodation
and you don't have any concerns about safety or their performance.
Don't ask intrusive questions that are irrelevant to the workplace.
Suzanne, MOD.
You can ask general questions like how they're doing.
If there's anything more they want to share with you about it
or if there's any way they want you to support them,
follow their lead.
Stan, Small business owner.
Do I have to keep an employee's disability a secret?
Kass, MOD.
Yes. Business owners and supervisors have an obligation to keep disability
related information confidential and only shared on a need to know basis.
That means, for example,
that you can share limited relevant information with their supervisor
if it's needed to provide a reasonable accommodation.
Stan, Small business owner.
How should I respond
if an employee asked me about another employee's
disability or disability related accommodation?
Kass, MOD.
You don't have to lie, but you do have to protect privacy.
If an employee asks you if another employee has a disability,
you can say, “that kind of information is private.
Whether or not I knew, it wouldn't be appropriate for me to talk about it
with you.”
If an employee asks you about their workmates disability
related accommodation such as a standing desk, you can respond with something
like, “I'm aware of the standing desk and I've approved it.
This is a personnel matter that I'm keeping private, just like
I would do for you or any other employee.”
Suzanne, MOD.
If other employees are concerned about safety
or work performance of a workmate, address the behavior privately with the workmate
like you would with any other performance or safety issue.
Leave room for them to ask for an accommodation if needed.
If you don't have a safety or performance concern,
you can respond to the employees that you are not concerned.
Kass, MOD.
For example, let's say you have an employee who has privately
disclosed to you that they have autism and have difficulty making eye contact.
Another employee comes to you to ask why they don't make eye contact
and says they're concerned it's harming the company's relationship with customers.
You don't have any concerns about work performance
or relationships with customers.
You can respond by saying, “I'm aware, I don't have any concerns.”
Remember, you have a legal obligation to keep disability related information
on a need to know basis, and it's not the employee's job
to educate their workmates on their disability.
Stan, Small business owner.
What if the employee told me that they're fine with me telling everyone
they have a disability or a disability related accommodation?
Kass, MOD.
It's best practice to keep disability related information confidential,
even if the employee has openly shared information with staff themselves,
says you're okay with sharing, or even if they asked you to share.
You, as well as the managers and supervisors of your business,
still have a responsibility to maintain confidentiality.
For example, if everyone knows about an employee's disability,
you still can't talk openly about their medical condition or their accommodations.
Keep in mind that an employee may later change their mind or seek to limit
what is known about their condition.
So it's in your best interest as a business to always prioritize
confidentiality.
Sarah, MOD. And you are not allowed to pressure
your employee to share disability related information about themselves.
Let the employee share information on their own terms.
Let's take a look at how Cathy, a caterer
and Peter, one of her pastry chefs, handled telling the rest
of the catering team about Peter's upcoming absence
due to a surgery.
Cathy, Caterer. Hi, Peter.
So I know your surgery is coming up in a few weeks, and you've got your PFML
sorted out for a reduced work schedule during your recovery.
Soon we'll need to start planning with the rest of the team for your absence.
I wanted to get your thoughts on that and how to talk about it
with others in a way that maintains your right to privacy.
I was thinking of telling people
you will likely be out of work from April 5th through 30th,
with some uncertainty as to your return date.
Does that sound okay to you?
Peter, Pastry chef.
Thanks for checking in.
I'm very open about my diagnosis.
I'm okay with you sharing with everyone that I have cancer
and that my surgery and treatment is related to that.
Cathy, Caterer.
I was thinking of giving everyone the schedule head's up at our next
all staff meeting.
If you'd like to share more about the situation at that meeting,
I'll support you.
But I don't plan to reveal more than what I've just told you.
I want any further disclosure to be your choice.
Stan, small business owner.
What do I do
if I think an employee's disability is negatively impacting
their job performance?
Mike, MOD.
As an employer, you have a right to ensure
your employees can perform their essential job functions.
The basic job duties that are critical and necessary to successfully do their job.
If the employee's
disability related symptoms are negatively
impacting their performance of essential job functions,
you have a right to know and to raise your concerns.
Suzanne, MOD.
When discussing concerns, focus
on real observed behaviors and your specific concerns
about their performance of essential job functions.
Leave the door open for them to ask for accommodations if needed.
Don't rely on stereotypes, assumptions or speculation.
Let's look at how Anna,
the owner of a small legal office, raises her concerns
with Patrick, a paralegal at the firm.
A few weeks ago, Patrick
disclosed to Anna that he has a disability
and recently started a new medication.
Lately, Anna is concerned about new performance issues
she's noticed in Patrick's work and thinks they may be due to his new medication
Anna, Attorney.
Hi, Patrick.
As I've mentioned before, I appreciate the detailed, organized notes
you take at our client interviews.
Over the last few weeks, though, I've noticed
that you've been dozing off in interviews
and have left some important things off of the interview notes.
This is unusual for you.
Is everything okay?
Patrick, Paralegal.
I'm really sorry about the dozing off and incomplete notes.
My new medication makes me sleepy if I sit for long periods of time.
Since client interviews are usually late in the day
after I've been sitting at my desk for several hours,
it can be hard for me to stay awake.
Anna, Attorney.
Okay.
We should discuss whether an accommodation may be appropriate.
It's important for you to be alert and pay close attention
in these interviews so we don't lose out on important information.
I want to make sure you have what you need to make that happen.
Mike, MOD.
Since Patrick's disability is known and it's impacting his work,
it's appropriate for Anna to talk to Patrick about possible accommodation
In consultation with his health care provider,
Patrick might consider suggesting either adding
a break to client interviews or adjusting the start time
if he believes those options may help him perform his job duties.
Anna will then need to evaluate whether his suggestions work for the business.
If Patrick’s performance issues continue with or without an accommodation
Anna should handle them the way she would
any other performance issue.
Stan, Small business owner.
What if other employees are saying discriminatory things?
Mike, MOD.
If your employees are harassing or discriminating against an employee,
you have a responsibility
to stop the behavior and appropriately investigate or evaluate them.
Remind employees
that you strive to have an inclusive, supportive workplace
and that personnel matters are private.
Suzanne, MOD.
To learn more about your obligations, check out the links in the video
description.
If you have questions about a specific situation
that aren't answered by these self-help resources,
you can contact MOD at
mass.gov/MOD/contact
to request a disability rights consultation.
For example, if you suspect an employee
might have a disability and need accommodations,
but you aren't sure whether or how to bring up the topic,
one of our disability rights specialists can discuss the pros
and cons of different approaches and wording.
Note that MOD is not staffed to handle urgent situations,
so make your timeframes clear and give us as much notice as possible
so we can give your question the time it deserves.
This video provides an introductory overview.
Employment situations are often complicated
and depend on the specifics of the situation.
Please visit mass.gov/MOD/DisabilityRights
for more details.
None of our content should be considered legal advice.
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