As we know, people recovering from injury or mental illness grapple with a range of identity and privacy issues when they start to consider a return to work.

From handling the emotional impact of being off work, to navigating an effective return to work plan, there’s a lot to consider. And for many individuals there is considerable uncertainty and apprehension around the idea of disclosing their health status to employers and colleagues, for fear that it will do them a disservice.

Whether the injury or illness was acquired on the job or not, at some stage, an individual with a chronic condition or disability will likely be confronted with deciding whether or not to disclose their situation to their current, potential or new employer.

Confidentiality and discrimination are two of the key issues at play here, and the rights and obligations of both employee and the employer are not always clear. That’s why it makes sense to get your head around some of the policies and laws that determine the boundaries of disclosure in the workplace so that your clients can make an informed choice.

The Law

According to the Victorian Equal Opportunity and Human Rights Commission,
“It is against the law for employers to discriminate against you because of your disability by:
refusing to offer you employment
• dismissing you or refusing to allow you to work
• refusing to offer promotion or training
• treating you unfavourably in any other way.
You have no legal obligation to disclose your disability to your employer, although disclosure may be practical in certain situations. For example, if there need to be workplace modifications made”.

Under the Disability Discrimination Act 1992 (DDA) it is against the law for an employer in Australia to choose not to hire someone because of his or her disability.The Act safeguards individuals at all stages of employment, including:

• The selection and interview process
• Staff training
• When drawing up the terms and conditions of employment
• Promotion
• Dismissal.

From the boss’s end

Employers are obliged hire the best person for the job, whether the applicant is disabled or not. If the best person happens to have a disability then it is the employer’s job to ensure that he or she can still carry out their role.

Also, under the Equal Opportunity Act 2010 employers are required to make reasonable adjustments for a person with disability who:
• applies for a job, is offered employment, or is an employee, and
• requires adjustments in order to participate in the recruitment process or perform the genuine and reasonable requirements of the job.

Employee obligations

In conclusion, choosing whether or not to tell their employer about an injury or illness is entirely up to the individual. Employees are not legally required to disclose a mental illness or injury to an employer, unless it has the potential to impact on their ability to do the job effectively and safely. And if they do choose to tell, the employer must keep the disclosure confidential.

Having clear boundaries around these issues can help employees to feel more comfortable about their decision to disclose (or not). But in practice, it is not always that simple.

For example, in the early stages of returning to work, disclosure can sometimes mean the difference between a realistic return to work plan or not. Though it involves disclosing personal information, collaborating to discuss strategies and adjustments (i.e. physical aids, ramps, revised work hours etc.) with a manager can be a positive step and will usually help the employer to better understand the nature of the illness/injury and of the types of barriers and struggles that the employee might be facing. For those involved in the compensation system, outright non-disclosure is often not an option.

In these instances, it can sometimes help for employees to view this process as a “stepping stone” – that is, a return to modified work in the first instance; that if managed appropriately, has the potential to lead to work opportunities down the track, which may not require the same level of disclosure as confidence builds and their recovery progresses.

Whatever your client decides, taking the time to think about a long-term work strategy, options for disclosure and plans for maintaining a professional identity at each stage of the recovery process, can help to reduce anxiety as return to work planning progresses.

Have any of your clients experienced similar challenges as they prepare to return to work?

How did you guide them? We’d love to hear from you!

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