Do I have to disclose my back injury to prospective employers?

Dear Nancy,

While working in the OR seven years ago as a surgical technician, I hurt my back. At that time I was in nursing school. I completed school six years ago but have not worked as a nurse. I’m feeling much better now and am ready to start working as a nurse. Do I have to disclose my injury to prospective employers? Could an employer refuse to employ me because of my injury?

Cassandra

Dear Cassandra,

Under the Americans With Disabilities Act, you need not disclose your injury to prospective employers, unless you believe you will need to be “reasonably accommodated” in the workplace due to your injury, which must qualify as a disability. This disclosure does not need to be done during an interview for a position. In fact, an employer cannot ask you about a disability during the interview. Instead, when you realize you need to disclose a disability, you do so at that time. Be clear, the ADA only requires employers to meet the requirements when they are aware of a known disability.

An accommodation is required if you are qualified to perform the essential job functions of the position. The essential job functions can be found in the job description for the position for which you are applying. Those functions form the basis of your on-the-job-responsibilities.

For example, if an OR position would require you to lift heavy objects of a certain weight and you are not able to do so, informing the prospective employer of your limitation requires the employer to accommodate you in this position if it qualifies as a disability. A reasonable accommodation under this circumstance might be that another one of your OR co-workers lifts those identified objects or, if lifting them is a nonessential function, it is removed from the job description.

If you are not able to perform the essential job functions, the accommodation would present an “undue hardship” on the employer, or if there is no accommodation available, then the employer is not discriminating against you by not hiring you and no violation of the ADA would arguably occur.

You did not indicate what the nature of your injury was or if you are still being treated for it. If you are, you might consider asking your current treating physician about what limitations, if any, you should be aware of. Having the physician write his recommendations in a letter and having it available, if you decide to ask for any accommodations, would be a proactive move on your part. If not currently being treated, your former physician can likewise provide you with a letter with your treatment history and any need for constraints on your ability to work as an OR nurse should you need that documentation.

Seeking a consultation with a nurse attorney or other attorney who practices in the area of employment law and works with employees might be an important first step to determine if the injury qualifies as a disability. You also can find out from your attorney what specific protections you have under the ADA when applying for a position or when you are an employee.

Cordially, Nancy