May 31, 2024

Disability Disclosure is NOT Required of Applicants

From time to time, I hear employers’, managers’, and HR professionals’ frustration when they learn a new employee failed to disclose in an interview that the employee needs a reasonable accommodation. This is not uncommon.

On May 22nd, the EEOC filed suit against an employer for allegedly terminating an employee with vision impairments for requesting a reasonable accommodation on the employee’s first day of work. Oops! Nine days later, on May 31st the EEOC filed suit against another employer (both Maryland-based) for failing to provide a reasonable accommodation for a newly hired employee. Whoops!

There are myriad laws that prohibit discrimination based on protected status and/or that require a reasonable accommodation for that status such as for:

  • a disability under the Americans with Disabilities Act (ADA);
  • pregnancy under the Pregnant Workers’ Fairness Act;
  • religious observance under Title VII of the Civil Rights Act of 1964;
  • military obligations under the Uniformed Services Employment and Reemployment Rights Act (USERRA);
  • and more such as state and local laws.

So, if a candidate requests a reasonable accommodation after you extend a conditional offer of employment or on the candidate’s first day of work, don’t be frustrated. Frankly, your frustration is the whole point of the law! The purpose of these laws is to remove these barriers to employment.

Proactively, now might be a good time to do a quick audit. Work with your company’s legal counsel to review your employment application, whether it is electronic, hard copy, or both. Does it request any information that is prohibited under federal, state, or local law? Train your managers to ensure they know what questions they should/not be asking in interviews. If you find an oops, fix it.