Invisible Disabilities in the Workplace: Accommodation Without Disclosure

Written on behalf of Peter McSherry

Disability accommodation is a foundational obligation under Ontario employment law. While many accommodation issues arise in the context of visible or well-understood disabilities, a growing number of disputes involve invisible disabilities: conditions that are not immediately apparent to employers, colleagues, or even managers. These may include mental health conditions, chronic pain, neurological disorders, autoimmune illnesses, learning disabilities, or episodic conditions that fluctuate over time.

Invisible disabilities present unique legal challenges. Employees may require accommodation to perform their work, yet be reluctant or unable to disclose a formal diagnosis. Employers, in turn, may struggle to assess accommodation requests without detailed medical information, particularly where performance concerns or attendance issues already exist. The result is a legally complex and increasingly litigated area of Ontario employment law: whether, and to what extent, employees can access accommodation without full disclosure of their disability.

Understanding Invisible Disabilities in the Employment Context

An invisible disability is a condition that substantially limits one or more major life activities but is not outwardly observable. Unlike mobility impairments or sensory disabilities, invisible disabilities may not be evident to others and may not be consistently present. Many individuals with such conditions continue to work successfully with appropriate supports, often without their colleagues ever knowing the nature of the disability involved.

From a legal perspective, the key issue is not whether a disability is visible, but whether it engages human rights protections. Ontario law recognizes disability broadly, encompassing physical, mental, psychological, and learning conditions, whether permanent, temporary, or episodic. Courts and tribunals have repeatedly affirmed that individuals with invisible disabilities are entitled to the same protections as those with visible disabilities.

The difficulty arises in practice. Because invisible disabilities are not self-evident, accommodation often depends on open communication between the employee and employer. That communication may be partial, cautious, or indirect, particularly where employees fear stigma, retaliation, or negative career consequences.

The Legal Duty to Accommodate in Ontario

Employers in Ontario have a legal obligation to accommodate employees with disabilities to the point of undue hardship. This duty arises under human rights legislation and is interpreted broadly and purposively. It requires employers to take reasonable steps to enable employees to perform the essential duties of their position, unless doing so would impose undue hardship based on cost, health, or safety considerations.

Accommodation is not discretionary or optional. Once an employer is aware, or ought reasonably to be aware, that an employee may require accommodation due to a disability, the duty is triggered. Importantly, the duty does not depend on the employee using specific legal language or formally invoking human rights protections.

In the context of invisible disabilities, this principle has significant consequences. An employer may be on notice of an accommodation obligation even where an employee has not disclosed a diagnosis or provided detailed medical documentation.

Disclosure Is Not an All-or-Nothing Requirement

A common misconception among employers is that accommodation obligations only arise after an employee provides a formal diagnosis or discloses the precise nature of their disability. Ontario law does not support this approach.

Employees are not required to disclose their diagnosis to access accommodation. What they must do is provide enough information to establish that they have a disability-related need and that accommodation is required to address workplace barriers. The level of detail required depends on the circumstances, but it does not generally include disclosure of the underlying medical condition.

In many cases, employees may disclose functional limitations rather than diagnoses. For example, an employee may explain that they are experiencing concentration difficulties, fatigue, or anxiety that affects their ability to meet certain deadlines or attend the workplace consistently. If this information reasonably signals a disability-related issue, the employer is expected to respond appropriately.

Employers who insist on diagnostic disclosure as a precondition to accommodation risk violating human rights obligations.

How the Duty to Accommodate Is Triggered Without Formal Disclosure

The duty to accommodate can be triggered in several ways, even where an employee does not explicitly state that they have a disability. Employers may be deemed to have constructive knowledge of a disability where circumstances indicate that performance, attendance, or conduct issues may be disability-related.

For example, repeated absences, requests for flexibility, changes in behaviour, or difficulty meeting previously manageable expectations may all signal an underlying issue. While employers are not expected to speculate about medical conditions, they are required to inquire further where there are reasonable indicators that accommodation may be required.

This does not mean employers must diagnose employees or assume disability in every instance of underperformance. Instead, it requires employers to approach such situations with caution, engage in dialogue, and avoid rigid responses that disregard potential human rights implications.

Accommodation Based on Functional Limitations

Ontario law emphasizes functional limitations rather than medical labels. Functional limitations describe what an employee can and cannot do in the workplace, as opposed to identifying the medical cause of those limitations.

Accommodation based on functional limitations allows employers to address workplace needs without requiring intrusive or unnecessary medical disclosure. For example, an employee may require flexible start times, reduced sensory stimulation, modified workload distribution, or remote work options due to an invisible disability. The employer’s focus should be on whether these accommodations are reasonable and effective, not on the specific diagnosis involved.

This approach also protects employee privacy. Medical information is highly sensitive, and employers are entitled only to the information reasonably necessary to implement accommodation, not to full medical histories or diagnostic details.

The Interactive Accommodation Process

Accommodation is not a one-time event. It is an ongoing, interactive process that requires cooperation from both employer and employee. In cases involving invisible disabilities, communication is vital, as needs may evolve or fluctuate over time.

Employers are expected to engage in good faith, assess requests on an individual basis, and explore available options. Employees, for their part, are expected to participate in the process, provide reasonable information about their limitations, and cooperate with proposed solutions.

Breakdowns in this process frequently give rise to litigation. Employers who dismiss requests without exploration, delay unreasonably, or adopt a rigid “one-size-fits-all” approach may be found to have failed in their duty to accommodate.

When Medical Information Can Be Requested

While employers cannot demand diagnostic disclosure, they are entitled to request medical information in certain circumstances. The scope of permissible requests is limited to what is reasonably necessary to assess accommodation needs.

Generally, employers may request information addressing:

• Whether the employee has a disability requiring accommodation
• The employee’s functional limitations and restrictions
• The expected duration of the limitations, where relevant
• Whether the employee can perform essential duties with accommodation

Employers should avoid requesting details about specific diagnoses, treatment plans, or unrelated medical histories unless there is a clear and justifiable need.

Overly broad medical requests can themselves constitute discrimination, particularly where they deter employees from seeking accommodation.

Performance Management and Invisible Disabilities

One of the most legally sensitive contexts for invisible disabilities is performance management. Employers may observe declining performance or attendance without understanding the underlying cause. If discipline or termination follows without consideration of potential disability-related factors, liability may result.

Ontario courts and tribunals have consistently held that employers must consider whether performance issues are linked to disability before imposing discipline. This does not immunize employees from accountability, but it does require employers to pause and assess whether accommodation may address the issue.

When performance concerns arise alongside indicators of an invisible disability, employers should engage in dialogue, seek appropriate information, and consider accommodation options before taking punitive measures.

Privacy, Stigma, and the Right Not to Disclose

Employees with invisible disabilities often face heightened concerns about privacy and stigma. Disclosure may carry fears of being perceived as less capable, unreliable, or difficult. Ontario law recognizes these realities and protects employees from being compelled to make unnecessary disclosures.

At the same time, complete non-disclosure may limit the employer’s ability to provide effective accommodation. The legal balance lies in requiring sufficient information to enable accommodation while respecting the employee’s right to medical privacy.

Employers who pressure employees to disclose information beyond what is necessary, or who treat disclosed information casually or improperly, risk compounding their liability.

Termination Risks Where Accommodation Is Mishandled

Failures to accommodate invisible disabilities can have serious consequences, particularly in termination contexts. Employees who are dismissed while disability-related accommodation issues are unresolved may bring claims for discrimination, wrongful dismissal, or both.

In some cases, termination decisions may be found to be tainted by discrimination even where legitimate business reasons exist. The presence of an unmet accommodation obligation can undermine an employer’s justification and expose the organization to significant damages.

Employers should proceed with caution where accommodation requests are pending, medical information is incomplete, or disability-related issues may be contributing to workplace challenges.

The Employee Perspective: Rights and Responsibilities

Employees seeking accommodation without full disclosure are entitled to legal protection, but they also have responsibilities. They must communicate their needs sufficiently, cooperate with reasonable requests for information, and engage in the accommodation process in good faith.

Where employees refuse to provide any information at all, or decline reasonable accommodation options without justification, their claims may be weakened. The law does not require employers to accommodate in a vacuum.

Understanding this reciprocal framework is essential for navigating invisible disability issues effectively.

A Nuanced and Evolving Area of Employment Law

Invisible disabilities challenge traditional assumptions about accommodation, disclosure, and workplace performance. Ontario employment law has evolved to recognize that disability is not always visible, static, or easily categorized, and that legal protections must reflect that reality.

Accommodation without full disclosure is not only possible under Ontario law, but it is also increasingly common. Employers who insist on rigid disclosure requirements or fail to engage meaningfully with accommodation requests expose themselves to significant legal risk.

As workplaces continue to evolve and awareness of invisible disabilities grows, this area of law will remain dynamic. Both employers and employees benefit from understanding the legal framework, respecting privacy, and approaching accommodation as a collaborative process rather than a procedural hurdle.

Peter A. McSherry Employment Lawyer Advises Guelph Employees on Invisible Disabilities in the Workplace

Invisible disability accommodation raises complex legal issues for both employers and employees. If you are navigating a workplace accommodation request, performance concern, or termination involving disability-related issues, the experienced legal guidance of Peter A. McSherry Employment Lawyer can help protect your rights and reduce risk. Contact Peter A. McSherry by calling 519-821-5465 or reach out online to discuss your situation and obtain clear, practical advice.