Non-Disclosure of Psychiatric Disability: How to Support a Worker Who Chooses Not to Tell

People with a mental health diagnosis who want to work must decide whether to disclose their disability. Research shows up to 90% of people with psychiatric disabilities choose not to reveal their disability to their employer or coworkers (Elraz, 2013; Jones, 2011). Therefore, it is important for those assisting employees with psychiatric disabilities to understand legal rights and what may be forfeited by disclosure or non-disclosure of a disability. Non-disclosure by an employee to the employer can limit and even negate any legal protections under the Americans with Disabilities Act (ADA) (MacDonald-Wilson, Russinova, Rogers, Lin, Ferguson, Dong, & MacDonald, 2011). This article provides an overview of job protections under the ADA, examines reasons for non-disclosure and explores ways to support an individual who chooses not to disclose at work. 

Legal Overview
The ADA (PL 101-336) prohibits discrimination against a qualified individual with a disability. An employee may request reasonable accommodations at any stage of the employment process, even after being hired (Goldberg, Killeen, & O’Day, 2005). The law requires the employer to provide reasonable accommodations so an individual can perform the essential functions of a position. Accommodation can be essential to successful job performance and ultimately to employment retention. However, to receive legal protections, the individual must disclose a disability to the employer, fully describing and justifying the accommodations requested.

Although the ADA requires employers to accommodate covered employees, accommodations must be requested and must also be reasonable (McDonough, 2013). Two affirmative defenses to the requirement to provide reasonable accommodations are undue hardship and direct threat. If a specific accommodation request is declined for either reason, the law requires the employer and employee to enter an interactive process to determine if alternate accommodations are possible (McDonough, 2013).    

Under the ADA, undue hardship is defined as a significant difficulty or expense for an employer. Whether an accommodation is considered an undue hardship is determined by the size and type of business and its financial capacity. Larger employers may be able to budget a more significant cost than smaller employers (Disability Nondiscrimination Law Advisor, 2014).  

Director Threat
Direct threat is defined as a significant risk of substantial harm to an individual or others that cannot be reduced or eliminated through reasonable accommodation. In determining if an individual poses a direct threat in the employment environment four factors must be considered: 

1.    Duration of risk
2.    Nature and severity of potential harm
3.     Likelihood that potential harm will occur
4.    Imminence of potential harm (Taylor, Goldstein & Proksel, 2008). 

The affirmative defense of direct threat may be particularly stigmatizing for many individuals with mental illness, negatively affecting their decisions to disclose, or even apply. 

The Interactive Process
Both employer and employee must be active participants in the interactive process (McDonough, 2013). Although an employee must first request an accommodation, circumstances exist in which employers may have an obligation to provide an accommodation. Employers should be aware that some courts have suggested that if an employer knows about a disability and the need for accommodation, the obligation to provide reasonable accommodation may exist absent a request.

Once an accommodation request is received or is realized by an employer, the interactive process begins. The employee and employer must meet to analyze job functions and establish essential and nonessential job tasks, to identify barriers to job performance and explore accommodations that would work best (McDonough, 2013).

Rationale for Non-Disclosure
Many workers with psychiatric disabilities opt out of their legal protections by not disclosing their disability. They may fear the consequences of disclosure and choose to conceal disabilities to avoid negative stereotypes and preserve self-esteem. They may fear other negative consequences such as not being accepted by coworkers; being seen as different, inadequate, or incompetent by the boss; being passed over for promotions, subjected to a punitive transfer, demotion, or even termination (Downey, 2012). 

In a literature review of disclosure studies, Jones (2011) found that an individual with a psychiatric disability was not the primary source of disclosure. Third-party vocational specialists tend to disclose client disabilities within the first six months of employment (MacDonald-Wilson, et al., 2011). A good vocational specialist can be key to accessing resources and providing needed support for appropriate accommodations, assuming he or she is sensitive to the job seeker’s preferences concerning disclosure.

Recommendations for Support
Armed with a clear understanding of the law, if an individual chooses not to disclose, employment supports must be found elsewhere. With proper guidance from a vocational specialist, an individual may consider available job resources. Additional recommendations for vocational specialists and employees include:
•    Natural accomodations. Seeking out jobs with natural accommodations such as an excellent job match that meets the job seeker’s support requirements (MacDonald-Wilson, et al., 2011).
•    Use Choose-Get-Keep (CGK). This is an employment model that prevents inadvertent disclosure (Anthony & Mizock, 2014). The CGK counselor partners with the job seeker but does not contact employers on his or her behalf (Rogers, Anthony, & Farkas, 2006).
•    Review the Job Accommodation Network (JAN). Suggested accommodations do not always need the permission of an employer. For example, a person might be able to directly negotiate working in a less noisy environment or taking an earlier lunch break with the employer.
•    Taking advantage of generic benefits. Employee Assistance Programs (EAP) or a liberal sick leave policy could be useful as unofficial accommodations (Center for Psychiatric Rehabilitation, 2005).
•    Using off-site job coaching. An employee might take advantage of help from an employment specialist, as long as it happens away from the job site.
•    Request accommodations unofficially. An employee can always ask for specific assistance (e.g., request weekly meetings with the supervisor).
•    Seeking accommodations for a different disability. If applicable and documented, consider disclosing a different disability (e.g., an individual with a psychiatric condition and migraines). 
•    Considering a different type of job. Peer support personnel and human services workers sometimes have jobs where lived experience is valued.
•    Considering a more flexible employer. Studies showed that people with psychiatric disabilities are more willing to disclose in mental health service provision environments (Banks, 2007). A change of employer may help someone who needs accommodations but is afraid to ask.

Conclusion
The decision by an employee in determining if or when to disclose a psychiatric disability can be complicated and personal. Making the decision  involves considering issues such as the need for accommodations at work, individual fears about colleague reactions and other possible negative consequences. In order to support an individual who must make this decision, the vocational specialist must be familiar with legal rights and accommodations that are available to the individual who chooses not to disclose. The specialist must also be adept at understanding and discussing individual fears related to stigma and disclosure.  References
Anthony, W. A., & Mizock, L. (2014). Evidenced-based processes in an era of recovery: Implications for rehabilitation counseling and research. Rehabilitation Counseling Bulletin, 57(4), 219-227. Retrieved from http://www.sagepub.com

Banks, B. R., Novak, J., Mank, D. M., & Grossi, T. (2007). Disclosure of a psychiatric disability in supported employment: An exploratory study. International Journal of Psychosocial Rehabilitation, 11(1), 69-84. Retrieved from http://www.psychosocial.com

Center for Psychiatric Rehabilitation. (2005). Disclosing your disability to an employer. Boston University: Author. Retrieved from htpp://www.bu.edu/cpr/jobschool/disclosing.htm 

Downey, J. (2012). Changing attitudes. Occupational Health, 64(6), 18-20. Retrieved from http://www.personneltoday.com/hr/changing-attitudes-to-mental-health/

Elraz, H. (2013). The sellable semblance’: Employability in the context of mental illness. Ephemera, 13(4), 809-824. Retrieved from www.ephemerajournal.org

Goldberg, S. G., Killeen, M. B., & O’Day, B. (2005). The disclosure conundrum: How people with psychiatric disabilities navigate employment. Psychology Public Policy and Law, 11(3), 463-500. doi:10.1037/1076-8971.11.3.463

Jones, A. M. (2011). Disclosure of mental illness in the workplace: A literature review. American Journal of Psychiatric Rehabilitation, 14(1), 212–229. doi:10.1080/15487768.2011.598101

MacDonald-Wilson, K.L., Russinova, Z., Rogers, E.S., Lin, C.H., Ferguson, T., Dong, S., & 

MacDonald, M.K. (2011). Disclosure of mental health disabilities in the workplace (pp. 191-217). 

In I.Z. Schultz & E.S. Rogers (Eds.) Work Accommodations and Retention in Mental Health. New York: Springer Science.

McDonough, T. L. (2013). Implementing the interactive process. Employment and labor relations law-the American Bar Association, 12(1), 1-5. Retrieved from http://www.obermayer.com/attorneys/tiffani-l-mcdonough/

Rogers, E. S., Anthony, W. A., & Farkas, M. (2006). The Choose–Get–Keep model of psychiatric rehabilitation: A synopsis of recent studies. Rehabilitation Psychology. doi:10.1037/0090-5550.51.3.247

Taylor, B., Goldstein, A. M., & Proksel, C. (2008). Direct threat under the ADA. Employment Legal Briefings, 8(1), 1-15. Retrieved from http://adagreatlakes.com/

U.S. Department of Labor. (n.d.). Undue hardship. National Disability Law Advisor Retrieved from Elaws - Employment laws assistance for workers and small businesses website: https://webapps.dol.gov/elaws/odep/glossary.aspx?Glossary_Word=Undue