Summary: This article addresses a few common stumbling blocks we have seen when doctors fill out accommodation paperwork.
Because of the Americans with Disabilities Act (“ADA”), employees with disabilities have a right to receive reasonable accommodations for a disability from their employer that will allow them to continue to perform the “essential functions” of their job. Employers, in turn, are permitted to ask for reasonable documentation to show that an employee has a disability and needs an accommodation, if those things are not open and obvious.
If that paperwork is requested, employees usually need to get it through their doctor(s). However, our Firm has come across numerous situations where the employer turns around and uses that paperwork against the employee, either to deny an accommodation or even to immediately fire them. That may violate the ADA, which requires employers to engage in an “interactive process” and work with the employee on reasonably accommodating them.
This article addresses a few common stumbling blocks our Firm has seen when filling out accommodation paperwork.
Doctors (who, after all, aren’t lawyers) may lose sight of the purpose of this documentation. Thus, they may provide insufficient detail or focus on the wrong things. The point is to provide reasonable documentation to support that the employee has a disability and needs accommodation. Employers can ask for more documentation if what they receive is not sufficient to show those things. However, they still have to explain what additional information they need, and if the documentation really does establish those things, a refusal to accept it may violate the ADA.
As a rule of thumb, documentation that (1) identifies the disability, (2) how it impacts the employee’s job, (3) what accommodations are requested, and (4) how those accommodations would let the employee perform the essential functions of their job, are going to be hard for an employer to object to.
Doctors may ask for accommodations without a good understanding of the employee’s job. It is important for an employee to explain their job duties to their doctor during this process, and ideally to provide some sort of job description. That said, a job description is not the be-all-end-all of an employee’s job. When doctors don’t have a proper understanding of what their patient’s job actually is, they may propose inappropriate accommodations.
And there are certain things that Texas courts, for better or worse, have ruled to be just about per se unreasonable requests. The most common of those we see is “indefinite leave.” Employers looking for a reason to get rid of an employee asking for accommodations often seize on paperwork suggesting something like that to justify immediately firing the employee. So, if a doctor suggests leave as an accommodation, it is important to provide some sort of end date, even if it is just a reasonable estimate. On the other hand, we have also seen employers claim that all accommodations must be temporary. Although it depends on the accommodation, that is usually not true.
Doctors and their patients may rely too much on the employer’s forms. Bigger employers often ask employees to jump through hoops and fill out lots of forms to request an accommodation. However, the law calls for reasonable documentation, not any specific documentation. And the initial request for accommodation need not be in writing at all. We have seen situations where employers’ forms ask for unnecessarily detailed, irrelevant, or invasive information. Some forms may be drafted to be (deliberately?) confusing or misleading, even for a doctor, or may frame the law incorrectly. While it is almost always a good idea for an employee to try hard to cooperate with their employer when seeking an accommodation, it is important not to be too scared of deviating from the employers’ forms.
Doctors and employees may show no flexibility or creativity in the accommodations they suggest. An employee, like their employer, is supposed to engage in an interactive process to find a reasonable accommodation that works for both them and the employer. While a doctor should listen to their patient and use their medical judgment when providing accommodations paperwork, we have seen many situations where employees or doctors suggest that only one accommodation can possibly work. Unscrupulous employers may seize on a definitive statement to claim that they cannot do that, and that as a result they cannot accommodate the employee at all. Of course, that ignores that the interactive process is a two-way street. Still, it is generally good for an employee and their doctor to think carefully about what the employee actually needs and, if possible, throw out different suggestions. That is because an employee doesn’t have a right to particular reasonable accommodation, just a reasonable accommodation.
Finally, although rarely a problem, doctors may not exercise independent judgment when providing documentation. While obviously our attorneys aren’t sitting in on clients’ doctor’s appointments, we have seen some situations where it sure looks as though the client’s doctor just wrote whatever the employee asked for word-for-word—or even just copied whatever the employer said about what the employee’s job was or what they could do. That can cause problems, because courts will assume the doctor was using independent judgment and an accommodation requested under circumstances like this can be hard to defend later.
If your employer has refused to accommodate your disability, or even fired you for requesting one, you should talk to an employment attorney like those at Rob Wiley, P.C.