October is National Disability Employment Awareness Month in the United States, and this year we’re featuring two series of blog posts! To kick off the month, we started the series “Working with Disabilities” with an exploration of life experiences for people with disabilities in all aspects of employment. Today’s post brings us back to the second series, “NDEAM Topics,” with a question that disabled employees often ask: can I be fired for not disclosing my disability?
Missed the basics on Disability Disclosure? Check out our post from the Working with Disabilities series for an introduction.
Can I Be Fired?
Yes, in some cases, an employee could be fired for not disclosing a disability – but only if the disability is preventing them from performing the essential functions of their job!
However…
Employers cannot ask about disabilities before a job offer. The Americans with Disabilities Act (ADA) prohibits employers from inquiring about an applicant’s disabilities during the hiring process. This protects individuals from discrimination based on their disabilities. Employees are not obligated to disclose disabilities before hiring, which ensures that individuals are evaluated based on their qualifications and abilities.
Note that in some cases, lying on a job application or interview or falsifying medical records can be considered fraud, which can have legal consequences.
Disclosing a Disability
Once an employee informs an employer of a disability and the need for accommodation, the employer must engage in an interactive process to determine if a reasonable accommodation can be provided. This involves working with the employee to identify suitable accommodations that would allow them to perform the essential functions of their job. (When does the interactive process begin? Check out this post!)
Accommodations may involve making changes to the work environment, providing assistive devices, or modifying job duties. (Need an introduction to accommodations? Check out this post!) If an employee cannot perform their current job with reasonable accommodation, the employer must consider transferring them to another suitable position within the organization. (More on this coming in a later post!)
If an employee can perform the essential functions of their job with reasonable accommodation, the employer cannot refuse to hire or terminate their employment based on their disability. Valid reasons for terminating a disabled employee include a direct threat to health or safety in the workplace, or if the termination is unrelated to the disability.
Employee Obligations
While the ADA protects individuals with disabilities from discrimination, it also requires employers and employees to engage in the interactive process to identify and implement reasonable accommodations. If an employee fails to disclose their disability, fails to engage in the interactive process, or rejects reasonable accommodations (and, as a result, cannot perform their job duties), the employer may have grounds for termination.