ADA Disclosure

[Piscean]

ADA advice requested. My employer recently sent out an email survey to all employees asking that we voluntarily disclose if we are currently disabled or have been disabled within the past five years. The list of ADA qualifying conditions includes HIV/AIDS whether symptomatic or not. HR claims the info will be kept confidential, but I am skeptical of this claim. So my question is this: Is it to my benefit or detriment to disclose that I am disabled?  Note that I do not have to specify the nature of my disability. 

Currently all is well with both my health and employment status. I have not requested nor plan to request any type of ADA accommodation. My HIV status has had no impact on the performance of my job. I still work 12-16 hour days and logged over 150K miles of business travel last year all the while putting up with the usual corporate stresses and BS. 

What I question is if there is any benefit, down the road, to going on the record now as disabled in the event my health status changes or begins to impact my productivity? Is it best to get out in front of this or wait until if/when the time comes when I really do need some sort of accommodation? Does being officially disabled provide any protections should the management decide they want to thin the herd or retaliate against me for some unrelated reason? Would they likely think twice before jerking around someone with a known disability?

In the three years that I have been poz, I have tightly held my status and am inclined not to disclose my disability so as to not raise any questions that would lead to being outted as HIV+. But, if there is some long term benefit to going on record I am open to considering making the disclosure. Has anyone been in a similar situation? If so, what did you do and what was the reasoning behind your decision? 

For the record, I am a Gay male, 53 and work for a large (5000 employee) corporation. The company is privately held and culturally/politically conservative.

[Aubietx75]

The short answer is yes it does help you. 

First this sounds simply like  compliance data collecting, meaning they are checking to make sure they are in compliance with local and federal laws on the ADA act. 
They collect the data and are usually surveyed by the local or federal labor department on various protected classes. If the numbers are extremely low the labor department may audit the company to ensure they are not discriminating against anyone. 

How this protects you.  If you are disabled, you become a protected class. Right or wrong it becomes a larger lisbility for your company to terminate you. with out any documentation, you have little to no proof that your company was aware of disability status and this leaves you with no protection. If they know you are disabled, then you are protected under the law. 

Hope this helps!

Aubietx75

[AusShep]

As a former sr exec at a privately held mid sized conservative corp, I'm going to disagree entirely with Aubietx75.

You're already protected being over 50, and that doesn't mean shit anyway.  You've only had HIV a couple of years and are healthy.  There is no reason to think you'll need accommodation, and if you do, you can ask for it then.

There is absolutely zero benefit of "voluntarily" disclosing you're disabled.

[Aubietx75]

Again, I think the point is this is not disclosing that you are HIV Positive.  This is simply an EEOC audit survey (from your description).  Even if you disclose that you are disabled under the ADA Act your company may not legally ask you about any diagnosis. 
If you have ADD/ADHD you are protected as a disabled person under the ADA Act.

There is no harm in this disclosure. 

I too work for a large privately held company (well over 15,000 employees).  For the previous 3 years I have had the VP of HR reporting directly to me.  In that role I have seen that discrimination is alive and well in my own company.

While I agree in some form that protection is little help, I do believe it can be a huge asset if something ever goes wrong between you and your current or future supervisor. 

[allanq]

This kind of question would not be permitted in an interview for a job. I don’t understand how it could be acceptable for an employer to ask it of a current employee.

Also, I don't understand how asymptomatic HIV can, by itself, be considered a disabling condition. This is certainly not the position of the Social Security Administration regarding disability.

[initforlife]

This is a link I found that may  help you       http://www.disabilityrightsca.org/pubs/506801.htm#_Toc264294459

[Aubietx75]

Allanq,

While you are correct that this could not be asked in an interview, a company can and in certain circumstances must compile demographic data in regards to race, gender, disability, or some other protected status. 

This data is used to make sure that the company is in compliance with local, state, and federal laws regarding employment of such protected individuals. 

In the ADA Act, a person may be asked if he or she identifies as a disabled person, but the specifics of the disability may not be asked.  It is up the person if they wish to share those specifics, meaning someone with HIV does not have to disclose their status, but still can identify as disabled. 

Here is the link to the government website that explains the HIV/AIDS portion of the ADA Act.
http://www.ada.gov/aids/index.htm

[JR Gabbard]

ADA advice requested. My employer recently sent out an email survey to all employees asking that we voluntarily disclose if we are currently disabled or have been disabled within the past five years. The list of ADA qualifying conditions includes HIV/AIDS whether symptomatic or not. HR claims the info will be kept confidential, but I am skeptical of this claim. So my question is this: Is it to my benefit or detriment to disclose that I am disabled?  Note that I do not have to specify the nature of my disability. 

First, is this survey anonymous, or will your name be traceable to it?  If it can be traced to you, then you have to read the question very closely.  It asks "are you currently disabled, or have you been in the past 5 years."  It does not ask "do you have a disability" and the distinction is important.  Since HIV does not currently impact your ability to work, which is the relevant definition of disability (there are many), you can truthfully answer "no".  Also, you should make photocopies of the survey and any other correspondence on the matter, and take them to an attorney ASAP.  The only list of disabled employees an employer can maintain legally is a list of accommodation requests granted.
If it's truly anonymous, then follow your conscience.  Your employer is building a demographic database.

[Jmarksto]

I received a similar form from my employer -- it didn't take me much time to decide not to disclose.  I was so surprised by the form, I set it off to the side to see if they would ask for it again - and they did. The form did ask for my name, date, etc. and if I was/had been disabled, and as far as I am concerned I am not and have not been disabled. There was an option to not provide any information -- and that is what I chose. I was shocked they could ask this.  While they may say it is confidential there were multiple people involved in asking for and collecting the data --- there was no way it was confidential.

[AusShep]

Aubie, you're being a little naive, and have said you've seen discrimination alive and well in your own company.

Again, there is ZERO benefit to the EMPLOYEE in this situation to disclose he's "disabled". 

About 20 things have to happen perfectly by all parties who ever have access to the information for this to never have an impact.  One slip up or hidden bias can turn this against the employee, and for what benefit? There is none. 

Providing this info now will not provide any help at all in the future if "something ever goes wrong between you and your current or future supervisor."  Do you really think a 5k employee company is afraid they're going to be sued by a non-performing employee if they get laid off because they checked a box once?  That they'll lay someone off who's performing better instead?   

I'm really not trying to pick a fight, and hope it doesn't seem so.  But you have to consider if there is *actual* benefit to the employee for this disclosure and in this case, there isn't.

[Aubietx75]

ausshep,

I don't think your picking a fight, in fact I prefer someone to voice opposition. That's how we all learn, and In no way would I ever think I'm the smartest guy in the room.

Though my understanding of the ADA Act is that to receive full benefits of protection the employee MUST disclose in some form or fashion that he/she is considered to have a disability under the law.  That disclosure can be through a survey or any other way and does not have to accompany accommodations, nor specifics of the disability.

That is my understanding of how the law protects and there are a few cases that somewhat set a precedent that leans towards that understanding.
No matter what we disclose only what we are comfortable disclosing, there is no law that states one must disclose.

Aubietx75

[allanq]

Aubietx,
If a person with HIV needs to leave work on disability, then he or she would declare that they are disabled at that time. (That is how I did it when I left work on disability.) I do not see how declaring disability in advance of the actual need to leave work would in any way be beneficial to the employee. I can see how this information could get into the wrong hands and be a big problem for the employee.

Allan

[Aubietx75]

Allanq,
I am just giving my opinion on the actual law. The law in my opinion is pretty clear to obtain full protection under it, one must disclose.  One does not disclose what their disability is, only that one exists.  Otherwise there are provisions under the ADA Act that the employee would not receive full protection. 

I put a link in one of the above posts to the government website for the ADA Act that discusses the HIV/AIDS portion of the law. 

It is a choice, not a mandate to disclose.  Just like what kind of coverage of car insurance does someone buy.  If you want full coverage you disclose, if you want limited coverage you don't. 

Aubietx75

[Joe K]

You should never disclose any serious medical condition to an employer, unless you are seeking some kind of accommodation.  There is no advantage to disclosing any disability and with companies being hacked all the time, your information could be compromised.  I also know that companies do look at employee records when considering promotions, etc., and the last thing you need is to be seen with a disability, when it has no impact at all on your ability to do your job.

Joe

[allanq]

Aubietx,

I think everyone would agree that in order to receive disability benefits you have to disclose (and prove) that you have a disability. How could it be otherwise?

Where we disagree is WHEN you make that disclosure. Based on my experience and that of my friends who have received disability benefits, the appropriate time to disclose your disability is when you actually apply for benefits. Answering an employer’s survey while you’re still fully capable of working has absolutely nothing to do with the level of benefits that you would receive if and when you need those benefits. I’m puzzled by your statement, “If you want full coverage you disclose, if you want limited coverage you don’t.” You seem to imply that by not participating in the survey the employee is somehow limiting his coverage.

You have mentioned the ADA government website several times. I have read that website. It addresses the obligations of employers to employees with disabilities. I could find no mention at all of any limitations on benefits if an employee does not disclose before he or she actually needs the benefit. Also, I could find no mention of a requirement for employers to send employees compliance surveys. If you can find a specific section of the ADA that supports disclosure before benefits are required, or if you can find any mention of a requirement for employers to send employees surveys on their past or current disabilities, I wish you would cite those sections of the ADA.

I’m also curious about the survey that the original poster received from his employer. Did his employer provide any justification or reason for the survey?

Allan

[initforlife]

Not sure why employers are sending out these kinds of letters. but a few month before I left my job . My company had a letter similar to this. and it also wanted to know what meds I was on. I threw it away. I knew enough I did not have to answer anything they asked in that letter..  I would guess it might have something to do with workers comp. just a guess and it is for a no good purpose.. I got approved for my disability a few months later so left my job anyway.

[initforlife]

Oh I should add reason I think it was more for workers comp. was because our company no longer offered health insurance they drop it the Dec 2013. and this letter was sent out after.

[JR Gabbard]

Though my understanding of the ADA Act is that to receive full benefits of protection the employee MUST disclose in some form or fashion that he/she is considered to have a disability under the law.  That disclosure can be through a survey or any other way and does not have to accompany accommodations, nor specifics of the disability.

Aubietx75

That's not how the ADA works.  The ADA is concerned with reasonable accommodation of disabilities and persons with disabilities.  Not benefits.  To invoke it you submit a letter from your doctor certifying that you have a disability within the meaning of the ADA, and requesting a specific accommodation or set of accommodations.  You cannot start the process rolling simply by filling out a survey form.
You can initiate an accommodation request without the physician certification just by asking for one, but if you fail to follow through with the documentation, your employer can deny your request.
The ADA also protects against on the job harassment, and arguably against soliciting lists of disabled employees.  But that's not what the OP asked about.  He wanted to know how to answer the question "are you currently disabled".  I think we've gotten off track.

[Piscean]

Hi Everyone. OP here. First, thank you all for the thoughtful, respectful and civil debate. The responses encapsulate what I have been internally debating for the last week or so. Based on the responses, I am going with my initial, gut reaction which is to not respond.  The risk vs. reward ratio on the risk side is too great to ignore. 

I would like to answer a couple of questions that were posed in the discussion. So, in no particular order, here goes.

•   The survey was sent out to gauge compliance with Federal Contract programs as my employer does, on occasion, business with the Federal Government. The survey claimed to be designed by the Office of Federal Contract Compliance Programs. 

•   Completing the survey was voluntary, but we were “highly urged” to submit our information.

•   The survey was NOT anonymous. Of the three questions asked #3 was our name. The e-mail also had this note in the fine print “Please do not forward this email as its survey link is unique to you”. I assume, at a minimum, they are tracking responses via e-mail addresses.

•   The survey came from a third party (SurveyMonkey) and not directly from my employer. This was another red flag to me as I can’t believe SurveyMonkey is certified to compile and store confidential healthcare information.

•   The person sending the survey was not known to me.  As is typical with previous communication within the company, if this is going out to all employees it should have been under the name of the VP of Human Resources and not a Regional Director.

So, all things considered. I decided not to respond. This may be completely innocent and above board or it could be some elaborate fishing expedition or some sort of “list building” activity. Whatever it is, I want no part of it.

Again, thanks to all for taking the time to respond. I agree with Aubie that we all learn via debate and civil discussion.

[Piscean]

First, is this survey anonymous, or will your name be traceable to it?  If it can be traced to you, then you have to read the question very closely.  It asks "are you currently disabled, or have you been in the past 5 years."  It does not ask "do you have a disability" and the distinction is important.  Since HIV does not currently impact your ability to work, which is the relevant definition of disability (there are many), you can truthfully answer "no".  Also, you should make photocopies of the survey and any other correspondence on the matter, and take them to an attorney ASAP.  The only list of disabled employees an employer can maintain legally is a list of accommodation requests granted.
If it's truly anonymous, then follow your conscience.  Your employer is building a demographic database.

JR - Thanks for weighing in on my question. The survey was not anonymous as one of the three questions asked was the respondents name. The exact question we are being asked to answer is "we are asking you to tell us if you have a disability or if you ever had a disability" We were provided with three choices to select from:

• Yes, I have disability (or previously had a disability)
• No, I don't have a disability
• I don't wish to answer.

The survey was sent under the name of a Regional HR Director and administered by SurveyMonkey. Would you consider this "soliciting a list of disabled employees?" As I reported in the above post, I declined to respond to the survey.

[Dan0]

Not much good will come from this.  I've seen these before and they tend to skirt around issues by simple being 'voluntary'. It's voluntary.....then voluntarily don't fill it out. It serves absolutely no benefit to you at this time nor will it impact what your company is obligated to legally do should you become disabled in the future!

I work in a position where I have my employees with FMLA, employees who go on short and long term disability and those employees who are medically disabled and request an 'accommodation' to continue being in the workforce at the company. My company, incidentally, employs thousands and thousands of individuals, so I have weekly interaction with these laws.

I do not want nor do I request any information on anyone's medical history or ailments. If they cannot perform their functions then it is up to the EMPLOYEE to take measures and self-identify an ailment or disability and it certainly would not start with me. Any data the corporation would collect prior to that point which was voluntary, well, I would be more than suspect the security of that information since it was voluntarily provided outside (apparently) a health services department. My responsibility? If they show they cannot fulfill the job description then I engage medical services or human resources and THEY take the lead in determining why and then working through the issues with the employee and their medical provider. At that point, their ailments are shielded.

This type of inquiry is best handled by health services and not - what I think this is - HR or legal. It will not change one iota what they will be required to do under ADA should you be certified disabled. It will, since it was provided voluntarily by you, not be entitled to the same privacy that a medical document would be.  'You TOLD us you couldn't do X, Y and Z.....'.

This isn't an over reach since they are asking you to volunteer the information. When's the last time you got a brief circumspect answer to 'How are you doing?' I can't imagine the paragraphs some people would unwittingly jot down with a questionnaire like this.

It is a rarity when a corporation come to you asking things like this that it is simply benevolent and benign. Data collection? Certainly - but it's data they are really unable to attain because they aren't able to otherwise. THAT's why it's voluntary and why you need to excercise anbundance of caution.

Incidentally, I'm not a union employee - I'm a manager in this situation and even from this vantage point I have refused these questionnaires and advised others both hourly and management to do the same. Even my friend in our legal department shredded his.

[Dan0]

How this protects you.  If you are disabled, you become a protected class. Right or wrong it becomes a larger lisbility for your company to terminate you. with out any documentation, you have little to no proof that your company was aware of disability status and this leaves you with no protection. If they know you are disabled, then you are protected under the law. 

You cannot self-certify you are disabled. Period.

[JR Gabbard]

The survey was sent under the name of a Regional HR Director and administered by SurveyMonkey. Would you consider this "soliciting a list of disabled employees?" As I reported in the above post, I declined to respond to the survey.

Not necessarily, since it was voluntary, and apparently will be used to gauge compliance with Federal contracts.  It might be nothing more than a source for the numbers they have to plug into any contract proposal for the feds.

But the same questions arose for me as for you:
-- what does "highly urged" mean?
-- Survey Monkey and confidential non-anonymous medical information?  Seriously?
-- request for sensitive personal disclosures didn't come through regular channels

I think you made the right decision.

[bocker3]

My employer has also asked for this info -- it seems to be a requirement from the Feds, to ensure "diversity" (my word, not theirs) - specifically, that they are hiring folks who are "disabled" under the ADA definition.

To be clear -- they did not ask about the nature of your disability, just "do you have a disability or have you in the past had a disability" that falls under the ADA.  They do list a whole host of things that would "qualify", including HIV/AIDS - as well as deafness, blindness, MS, etc.  However, you don't need to identify what qualifies you.

I get people's reluctance, but it feels like people looking for a bogey-man in the guise of a corporation, which is misplaced, IMO.  I am sure that my company would not be asking for this information if not REQUIRED by the government that has gone nuts with over-regulating everything.

I'll add - we've recently had some lay-offs happen and I've not noticed anyone with overt disabilities disappear (I have no idea who may or may not be disabled, but the number of seeing-eye dogs in our building has not decreased).

So, answer or don't answer -- but please put the ownership of this ask where it belongs -- the Feds, not your employer.

edited to add:  The use of SurveyMonkey would give me pause -- that seems like a not well thought out execution plan.

Mike

[allanq]

I find these employee surveys deeply disturbing.

Since employers cannot ask questions relating to a prospective employee’s past or current disabilities, how could they be held to hiring a certain number or percentage of people with disabilities? As Dan0 stated, “You cannot self-certify you are disabled. Period.” So how could these employee surveys be used as a measure of an employer’s compliance with the ADA?

A more likely gauge of an employer’s compliance with the ADA would be to examine complaints and lawsuits filed by employees with documented disabilities who feel they were denied reasonable accommodation under the ADA.

I have no idea what is behind these employee surveys, but I truly doubt that it is a mandate by the Federal government. If these surveys are indeed mandated by the Federal government, I hope someone can cite the section of the regulation or document in which this mandate is stated. I could find no such mandate in my reading of the ADA.

Allan

[Aubietx75]

Allan,
Depending on the role of the company such as do they have government contracts have they received any complaints or a few other circimstances results in mandatory surveys by a company.

From the above thread and the OP I do find it very odd that they used survey monkey, while the government does not tell you how to administer the survey, the security at which this information must be dealt with would not be present with survey monkey in my opinion.

Aubietx75

[allanq]

Aubietx75,

You and others are still dancing around the issue of how these surveys can in any way measure compliance with ADA. From what I gather from previous posts, these surveys are not asking employees if their companies have accommodated their documented disabilities. They are simply asking employees if they are or have been disabled. And what is the relevance to ADA compliance of a request (such as the one “initforlife” mentioned) that employees list their medications?

Some people on this thread seem to be guessing that these surveys are a Federal requirement. I’d still like to see a specific law or regulation (with a section and paragraph citation) that requires these employee surveys, even of companies that have government contracts.

Allan

[JR Gabbard]

.... From what I gather from previous posts, these surveys are not asking employees if their companies have accommodated their documented disabilities. They are simply asking employees if they are or have been disabled. And what is the relevance to ADA compliance of a request (such as the one “initforlife” mentioned) that employees list their medications?
....

You are correct to observe that these surveys cannot gauge compliance with ADA.  That is gauged by how and whether a company grants accommodation requests.
These surveys seem to be for a different purpose:  to collect demographic information for eventual use in showing that the company is in compliance with federal hiring/retention guidelines.  Here is the Federal Contractor Compliance Manual, which is probably what these companies are responding to.  Section I.A (IOW the first paragraph) mentions persons with disabilities among the groups contractors are supposed to target for hiring and retention/promotion.  The survey seems to be just a way to provide real numbers to roughly gauge compliance. 
What these companies are complying with here are Executive Orders regarding federal contractors, not the ADA per se, although most of those EOs draw upon the ADA for guidance.  It's a fine point, but an important one.

[Buckmark]

I suspect this may be the reason some companies are surveying their employees about disability:  revised regulations for federal government contractors requiring employment of disabled employees.  This Wall Street Journal article reports that contractors have to navigate a difficult path between the requirements of the ADA, and these federal contractor requirements.

http://www.wsj.com/articles/SB10001424052702303287804579447450295914372

Of course, I can't say for certain this is the reason why any of you have received a survey.  But it's certainly a possibility.

Regards,

Henry

[bocker3]

Thanks Henry and JR!

I am surprised that some people could find it hard to believe that the Fed Gov't would put a badly designed requirement on business in this country.  It happens all the time -- usually with some good intent that gets completely lost in the ultimate execution.

I can promise you that there are few, if any, companies that would do this survey without a mandate.  It serves no purpose and, in fact, probably makes it harder for them to ever contemplate laying off someone who has answered it in the affirmative for fear of a discrimination suit.
My company has, literally, hundreds of employees who exist simply to satisfy, monitor, audit or implement government regulations.

Mike

[Piscean]

Buckmark for the win! Thanks for the link. Based on the WSJ article, it appears this is exactly what my employer is trying to achieve with this survey. I still don't like the whole Survey Monkey implementation, so am ignoring the whole thing.

I suspect this may be the reason some companies are surveying their employees about disability:  revised regulations for federal government contractors requiring employment of disabled employees.  This Wall Street Journal article reports that contractors have to navigate a difficult path between the requirements of the ADA, and these federal contractor requirements.

http://www.wsj.com/articles/SB10001424052702303287804579447450295914372

Of course, I can't say for certain this is the reason why any of you have received a survey.  But it's certainly a possibility.

Regards,

Henry