The ADA and “Invisible Disabilities”

When we think of a disability that would be covered by the Americans with Disabilities Act (ADA), we often assume that if someone is disabled, we’ll know it—we’ll be able to see it or recognize it. But that’s not always the case. There are a number of disabilities which are often referred to as “invisible.”

What is an Invisible Disability?

Think of any of these types of disabilities, none of which can readily be seen by any observer:

• Diabetes
• HIV or AIDS
• Any type of brain injury or mental illness
• Any type of disability or condition which is in remission
• Any type of illness or condition, which is controlled by medicine

Conditions like these raise the question of whether a worker that has these so-called “invisible disabilities,” is protected by the ADA, and thus entitled to reasonable accommodations.

Loss of a Bodily Function

Before 2008, the ADA protected workers if they had an illness or condition which limited major life activities. But after 2008, the ADA was amended, to protect workers who had a disability that affected any major bodily functions.

That change alone suggested that a disability could, in fact, be invisible—many bodily functions aren’t readily observable by the outside world. For example, someone with HIV would have a severely compromised immune system, or someone with diabetes may not process insulin properly, all things the outside world doesn’t actually see.

What About Medicine?

And while in some cases, medicine can “fix” a bodily system, and allow it to work seemingly normal, the ADA looks at disabilities before the medicine is taken—that is, whether there is a loss of a bodily function in the absence of medicine. So, taking medicine to fix, cure, or help a part of your body function normally, doesn’t mean you aren’t covered by the ADA—you certainly are.

Liberal Interpretation of Disabled

Courts have been liberal, when it comes to construing what is and what is not, a loss of a major bodily function. This has led to more people being able to qualify as disabled under the ADA, thus allowing them to get reasonable accommodations at work.

Things like diabetes, or cardiovascular/arterial conditions, sleep apnea, or heart disease, or other illness, have been found to be disabilities under the ADA.

How Much Information Can an Employer Get?

Many employers, when faced with an invisible disability, will try to pry into an employee’s medical history, to see if the condition is “real,” or “valid.” The ADA only allows  the following:

1)      Before a job offer, they can ask about whether the employee can do the essential functions of the job;

2)      After hiring, the employer can only ask questions that are asked of all employees—the employer can’t “single out” the disabled employee, and any exams or questions must be related to the functions of the job, and only when the disability is not obvious (as it would not be, with an invisible disability).

However, if your behavior or conduct at work indicates that you may have a disability which interferes with your ability to perfomr the essential functions of your job, your employer has an obligation to discuss this with you to find out if there are any accommodation which might help you do your job.  This is where a doctor’s note would be helpful and the advice of counsel is essential.

If you’re disabled, your employer must make reasonable accommodations to help you do your job. Contact the San Jose employment attorneys at the Costanzo Law Firm today for help.

Sources:

adagreatlakes.org/Publications/Legal_Briefs/BriefNo37_Invisible_Disabilities_and_the_ADA.pdf

invisibledisabilities.org/what-is-an-invisible-disability/