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A construction worker has been diagnosed with a heart condition that will affect his ability to perform essential job functions. After receiving the news from his doctor, he goes to speak with his manager to discuss an accommodation that may be necessary for him to continue working.
This is a situation tailor-made for the Americans with Disabilities Act, the federal law that requires covered employers to provide reasonable accommodations that allow otherwise qualified individuals to perform their job duties.
When presented with such a request, an employer may wish to inquire about the nature of an employee’s condition. However, the ADA places strict limits on disability-related inquiries and medical examinations and the degree to which employers are permitted to conduct such inquiries varies. HR Dive recently explored what the law allows employers to ask about during both the pre- and post-employment offer stages of the hiring process.
Accommodation requests from current employees present similar compliance considerations. At minimum, employers should engage in an individualized, interactive process with the employee, said Dov Lutzker, senior counsel at Epstein Becker Green and former trial attorney for the U.S. Department of Justice’s Civil Rights Division.
But employers also need to avoid doing too much, Lutzker continued, like asking inappropriate questions about a person’s health and identity that go beyond the scope of an accommodation request. “The key for HR folks is to strike a balance,” he said, noting that any such inquiries must be both job-related and consistent with business necessity.
In some cases, employers need not require much in the way of additional information on an employee’s condition. This is particularly the case if the disability is obvious or already known to the employer.
If an employee who has quadriplegia and uses a wheelchair for mobility purposes requests an accommodation to make their workplace more accessible, “the employer probably doesn’t need to ask questions about the person’s disability,” Lutzker said.
If an employee’s disability is less obvious, the employer may ask for documentation of the disability and the accommodation needed. The documentation may come from a qualified health provider, preferably someone who knows the employee and has treated them previously, Lutzker said.
However, there may be situations in which the employer has not received enough information about the condition in order to determine how to proceed even after multiple requests for additional documentation. If that’s the case, employers may request a medical exam but with caveats, Lutzker said.
Any exam “needs to be limited and tailored to the individual and the person’s functional needs,” he continued. “It wouldn’t be appropriate to just do an overall medical exam.”
Other compliance sources echo this point. An ADA resource from the Job Accommodation Network advises employers to ask only for what is absolutely necessary in assessing accommodation requests. Asking for all medical records, JAN adds, “will rarely, if ever, meet this test.” Employers also may need to keep in mind compliance with the Genetic Information Nondiscrimination Act, or GINA, which prohibits the use of genetic information in making certain employment decisions.
Employers can provide examiners instructions and parameters that specifically seek to confirm that the employee has a medical condition that substantially limits a major life activity, Lutzker added. Employers also may request the provider to describe the employee’s functional limitations relevant to the job, as well as suggestions for possible accommodations.
It may be prudent to ensure the correct examiner is used. The employer seeking information on the construction worker with a heart condition, for example, might not be well-served by a note from a podiatrist, Lutzker said.
Once documentation is received, employers must ensure any employee medical records are kept confidential and separate from other files, Lutzker said. For instance, employers may run afoul of the law if they fail to keep those records out of an employee’s personnel file, or fail to appropriately limit the universe of people who have access to such records.
Lutzker suggested ADA training for HR professionals as well as managers, since the latter are likely to be on the front lines, fielding accommodation requests. “Have them trained,” Lutzker said of managers, “and then if there’s questions that come up, have a plan of who to reach out to.”
Employers also may need to create a system where questions and accommodation requests can be quickly answered or at the very least acknowledged, he added. This can be helpful even if the acknowledgement takes the form of a simple “we’ve got your request and we’re looking into it,” Lutzker said, noting that a response from a human representative helps employees feel that they’re being heard from the outset.
“Reach out to that person individually and make that connection,” Lutzker said. “Because sometimes what happens is the person makes a request and they don’t hear anything for a long time, and they start to get upset before anything has really happened or the employer’s gotten around to the request.”