Tuesday, March 12, 2013

What do you do if you doubt an employee’s disability?

An employee asks you for time off and other accommodations for anxiety attacks. Do you—

  1. Confirm her diagnosis and meet with her to decide the right accommodation to enable her to perform the essential functions of her job; or
  2. Counter her claims with skepticism, fail to grant her leave or other accommodations, and fire her?

A Los Angeles waste disposal company chose option number 2. According to Judy Greenwald at businessinsurance.com, that choice cost the company a $21.7 million jury verdict.

I hope that I don’t have to lecture any of my readers about what is wrong about denying accommodations and firing disabled employees.

What rights do you have, however, if you doubt the legitimacy of an employee’s claimed disability? Here are six tips, culled from the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act:

  • If an employee’s claimed disability is not obvious, an employer is entitled to receive “reasonable documentation” about the disability and its functional limitations.

  • If an employee’s claimed disability is obvious, however, an employer cannot ask for any confirming documentation.

  • Reasonable documentation means only that which is needed to establish that an ADA disability that needs a reasonable accommodation. Thus, in most cases an employer cannot request an employee’s complete medical records. If  an employee has more than one disability, an employer can request information pertaining only to those that require reasonable accommodation.

  • An employer may require that the documentation about the disability and its functional limitations come from an appropriate health care or rehabilitation professional.

  • An employer can ask an employee “to sign a limited release allowing the employer to submit a list of specific questions to the health care or vocational professional.”

  • Instead of requesting documentation, “an employer may simply discuss with the person the nature of his/her disability and functional limitations.”