Thursday, March 29, 2018

Don’t sleep on verifying reasonable accommodations

Photo by Nathan Dumlao on Unsplash
George Hirmiz, a front-desk clerk at a Travelodge Hotel, was caught on video sleeping in the hotel lobby while a fight broke out among its guests. After the hotel fired him, he claimed disability discrimination. His disability? An alleged illness that he had contracted from long-term exposure to high levels of electromagnetic voltage at the hotel.

The 7th Circuit had little difficultly affirming the dismissal of his lawsuit:

There is debate in the medical community over whether sensitivity to electromagnetic voltage is a physical disorder or a psychological one.… If it is psychological, the symptoms might not constitute a disorder that would entitle Hirmiz to the protections of the Americans with Disabilities Act. A great deal of psychological distress is trivial — fear of black cats, for example. And indeed the district court found that Hirmiz had provided no evidence — medical or otherwise — that he suffers from any “impairment” that “substantially limits” any of his “major life activities,” as required to prove the existence of a disability under the Americans with Disabilities Act.

I thought of this case after listening to this week’s episode of the Marc Alifanz’s and Dennis Westlind’s Hostile Work Environment Podcast, in which they discussed, with their guests Jon Thurmond and Wendy Dailey, of the HR Social Half Hour Podcast, the story of a job candidate with triskaidekaphobia, who refused to accept a job on the 13th floor of an office building. The solution was to accommodate her in available space on the 14th floor.

I’m not sure whether or not “sensitivity to electromagnetic voltage” is, or is not, and ADA-protected disability, I’m also not sure what accommodation a hotel can make for night desk clerk who falls asleep on the job.

Regardless, an employer need not take an employee at their word regarding the need for a non-obvioius reasonable accommodation.

Some accommodations, and their underlying supporting disabilities, will be obvious (e.g., a leg amputee requesting a chair). In those cases, it would likely be discriminatory to ask for medical documentation.

When the disability and/or the need for accommodation is not obvious, however, an employer is entitled to ask the individual for reasonable documentation about the disability and its functional limitations. According to the EEOC:
  • The request of the employee must be for “reasonable” documentation. An employer may require only the documentation that is needed to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation. It would unreasonable, for example, to request a person’s complete medical records because they are likely to contain information unrelated to the disability at issue and the need for the accommodation. 
  • An employer may require that the documentation come from an appropriate health care or rehabilitation professional, such as doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals. The appropriate professional will vary from case to case, and will depend on the disability and the type of functional limitation it imposes
  • In requesting documentation, employers should specify the types of information they are seeking regarding the disability, its functional limitations, and the need for reasonable accommodation. 
  • An employer can ask the employee to sign a limited release allowing the employer to submit a list of specific questions to the health care professional.

Our sleeping desk clerk lost his case because he offered zero medical evidence that his electromagnetic sensitivity was an actual medical condition.

In the case of the triskaidekaphobic applicant, the employer could have requested medical proof that the “condition” was a diagnosed phobia, as opposed to a mere superstition. Or, it could have done what the employer did in that case—ignored the ADA issues entirely and took the path of least resistance by placing the employee in an open spot on a different floor.

The point is that if you are faced with an individual with a non-obvious medical issue, you are within your rights to require that the employee submit reasonable documentation about the disability and its limitations before you engage in the interactive process and consider reasonable accommodations.