Welcome to the ADA Distance Learning Series hosted by your regional Disability and Business Technical Assistance Center. This session is presented live on Monday, June 4th and is rebroadcast in its previously recorded format on Tuesday, June 19th. Joining us today is David Fram to discuss the issue of documentation of disability in the workplace. Hi, David.
David is director of EEO and ADA services for the National Employment Law Institute. He serves as a trainer for employers, manufacturers, service providers, colleges and universities, law firms and bar associations, and state and local government. He performs independent investigation and provides consultation on difficult workplace situations. He is also served as an expert witness during administrative proceedings for EEOC. David was formerly a policy attorney with EEOC and he is also the author of "Resolving ADA Workplace Questions." As a note David previously joined us as a guest speaker in October of 1999 discussing the definition of disability in lieu of the recent Supreme Court decision, specifically the Sutton versus United Airlines case and a few others. We asked David back for an encore presentation to talk more specifically about documentation of disability. We should also note we asked David to present this session and scheduled it about a year ago, before he knew he would be overseas during the scheduled presentation. We are happy to have you with us now.
Thank you, Jennifer.
We extend our sincere gratitude to David and to you in the audience for your flexibility to participate during either the live presentation or the rebroadcast. David is nationally respected for his work in the field, rather than cancel the session or schedule a substitute presenter we worked to present the session in a dual broadcast format in order for participants to gain the benefits of David''s expertise in the subject area. Again we thank you David and most importantly all of you in the audience for your flexibility and understanding. David we are thrilled to have you with us today, documentation of disability in the workplace is a critical issue, a lot of employers have questions, a lot of employees with disabilities have questions with regard to what exactly do I need to provide to my employer and so forth. We are hoping you will be able to shed some light on that subject for us.
I will do my best, thank you for for having me. It is a very important issue and I''m really pleased to be here to talk about documentation of disability and what courts are looking at in determining whether somebody does have a disability. You know, the most important thing to remember is that employers generally should not be asking questions about disability unless one of two things really comes up: 1) the person asks for some reasonable accommodation or 2) you have concerns about direct threat and you get into the whole direct threat issue which of course we are not going to be talking about today. The most common time you would be asking about disability is when someone asks for reasonable accommodation. What I would like to do today is talk about what triggers this whole process, the reasonable accommodation process and then how should an employer respond initially. Because you know what? Initially I don''t think an employer should start getting into documentation of disability. I think an employer should first start looking for easy solutions. Then the third thing I''m going to talk about is what do you do when you do get into this documentation process? Why would you be getting into that area where you are actually asking for documentation? What is it that you can ask for? What is it that you shouldn''t ask for? So, starting off with my first issue, what is it that would trigger this whole process? Why would you every even be wondering if somebody has a disability, even before you get into documentation. Generally it is because a person has asked for something, some type of modification in the workplace they need because of some type of medical condition that might be a disability. Now EEOC and courts both agree that generally what triggers this is the person asking. The employer shouldn''t generally be speculating because by speculating or even by getting into questions about disability, before the person asks for something, you may well be regarding the person as having a disability. So first off the person has to ask for something from the employer. EEOC says this. I''m also going to tell you as we go through our session this morning some court cases on this point. One court case from within the past year is called Brown v. Lucky Stores, 2001 U.S. App. LEXIS 6609 (9th Cir. 2001), another court case is Montgomery v. Alcoa, Inc., 2001 U.S. App. LEXIS 8096 (6th Cir. 2001), these cases make it clear that generally the person has to start the process if they want something in the workplace. Sometimes an employee will say to an employer, I don''t want anything, I don''t need anything from you. In that case what the employer should document is that the person has said "go away and leave me alone." That is a very important thing to document when somebody has said "I don''t want anything" or if somebody has denied even having a disability or denied needing any help. Those are very important things for an employer to document especially if the person later sues the employer. From a plaintiff''s perspective, individuals with disabilities need to be very careful not to say things like that, not to suggest that they don''t need any help from the employer. Generally what triggers the process is the person asking for something. If the person says I don''t want anything, the employer should document that. It is important to remember employers should not be in the business of diagnosing people, shouldn''t be asking about disabilities before that happens. Courts agree that generally there is not a "should have known standard." It is a standard that the person has disclosed, "I have this medical condition, and I need some help." For example, there is a case called Montoya v. New Mexico, 2000 U.S. App. LEXIS 2687 (10th Cir. 2000)(unpublished) where a custodian engaged in lots of episodes of screaming and he used profanity. He later said "you should have known that I needed some accommodation because of my behavior." And the Court said "no." Employers are not supposed to be speculating. Remember, when an employer speculates, that is where you could be regarding the person as having a disability. So don''t speculate. Leave it up to the person to ask for something if they need it. The one exception to this rule is if the employer does in fact know about a disability. The employer might know about it because the person has previously told the employer, or maybe other employees tell the employer that this person has a disability. So the employer knows the person has the disability, and has some reason to know that the person needs something because of it. But those would be the two big triggers. No. 1 the person has asked for something. Or No. 2, the employer knows the person has a disability and has reason to know the person needs some accommodation because of it. Aside from those two triggers, generally except in the direct threat area, employers should not be in the business of asking about disability of asking for documentation of disability. All right. Let us say we have one of those two triggers. Now we are in the reasonable accommodation process, this interactive process, where you are looking for some modification in the workplace. The way I would approach this is I would start off with step 1, which does not yet involve documentation of disability. A lot of people just go straight to documenting disability and I think that is a mistake. Step 1 is what I call the "Burger King approach." When you walk into Burger King, the clerk behind the counter does not say "tell me all about your hunger pain." What the clerk says is "how can I help you?" That is where I would start off the whole reasonable accommodation interactive process with the search for a quick, simple, easy solution where you don''t get into documentation of disability. Loads of employers skip over this step and I think that is a big mistake because in many cases there really will be a quick, simple, easy solution that solves the problem. As an example, somebody comes in to his supervisor and says "I''m having so much trouble at my workstation because of my wrist. Well should the employer start talking about the guy''s wrists or ask for documentation about whether he has some type of you know cumulative trauma disorder or anything like that? The answer is no. I would start off with how can I help you? Because it might be that the person knows of some quick easy solution that would solve the problem. For example, maybe the person will say "what I need is one of those modified keyboards, a split keyboard, and they sell them at Radio Shack and they cost $39." In that case I would not get into documenting the person''s medical condition, because you know what? You don''t need to. I would just start off by giving them that $39 keyboard. If there is a quick, simple, easy solution, just solve it. Don''t go into ADA-land. Now if there is not a quick simple easy solution, well, then I would go to step 2 and I do go to ADA-land and that is where we get into the whole documentation issue. But again, I would start off with step 1, looking for a quick, simple, easy solution where we haven''t gotten any documentation we haven''t even talked about the person''s disability, we certainly haven''t been speculating about what the person can and can''t do. We have only been looking at what the person needs. What is it you need in the workplace and can I do this quickly, simply, easily. Now remember step 1, this Burger King step look for the quick, simple, easy solution, this is not required by the ADA. This is just something that I think is a good idea. Now one thing I do want to point out, Jennifer to your participants of course nothing that I''m saying today is legal advice. When you have actual questions and you need legal advice, talk to your own attorneys. But I think this is a good idea because a lot of these issues will go away at step 1. Now, if there is not a quick simple easy fix, for example, if that guy instead of saying I need a split keyboard, if he said well, what I need is I need a whole modified workstation and it is going to cost thousands of dollars or if what he is asking for is going to cause so much uproar from other employees it is not quick, simple, easy, well then go to step 2, ADA-land. This is where an employer is entitled to get all of the information the courts are saying they are looking at in terms of whether the person has a disability. This is where courts are asking is there an impairment, a physical or mental impairment? Is it affecting a major life activity? And then third, is it substantially limiting that major life activity? This is where courts are saying employers have a right and EEOC says employers have a right to get all of this information. Now, one warning I will give you ahead of time is yes, you are entitled to get all the information we are about to talk about. But you should not be getting more than you really need because if you start getting more than you really need if you are an employer, you could be setting yourself up for a harassment case. Just as an example, if someone has quadriplegia you don''t need a lot of medical information to determine that this person is covered by the law. But if somebody has got one of the more common hidden conditions, and I say more common because the actual charges that have come in over the years show that most of the ADA cases are hidden or non-apparent conditions. Well, in those cases employers are entitled to find out each and every one of these things. Not just, for example, from a doctor that this person has some blood disorder and therefore the doctor concludes that it is a disability. That is not enough information, no. The employer is entitled to know there is an impairment, that there is a major life activity, and that there is a substantial limitation. Starting off with the first issue, that there is some impairment. So remember, the first thing an employer should look at is there some impairment? Is there some disorder? The reason I say start off with this is that, you know, there have been cases over the years where courts have said there is not even a disorder. Remember, physical characteristics, emotional characteristics, bad judgment, personality traits, these things aren''t even disorders to begin with. Being stressed out is not even a disorder. For example, there was a case called Mundo v. Sanus Health Plan of Greater New York, 966 F. Supp. 171 (E.D.N.Y. 1997)(electronic publication only) where the Court said being stressed out is not an impairment to start off with. Of course if the person did have post traumatic stress disorder, that is an impairment. But just general stress, general grief, that is not an impairment. Again as I mentioned, bad judgment is not an impairment. There was a case called Greenberg v. New York State Department of Correctional Services, 919 F. Supp. 637 (E.D.N.Y. 1996) where the Court said hey, all this guy is saying is that he is being regarded as having bad judgment, not an impairment. Irritability is not an impairment. There was a case called Duda v. Board of Education of Franklin Park Public School District No. 84, 133 F.3d 1054 (7th Cir. 1998) where the guy came into court and said "judge, I''m irritable." And the judge of course said "so am I. Get out." It is not an impairment to begin with. You to have something that is an impairment. It is important to remember that EEOC takes the position that if you regard someone as having some type of bad genetic make up, that that could be regarding them as having a disability. You know, one important issue on impairment that an employer needs to be aware of is that it doesn''t matter where the impairment comes from. Sometimes I have seen employers and I have seen unions say, hey, if this wasn''t an on-the-job injury or if this impairment is being caused by the person, him or herself, then it is not a disability because it was voluntary, maybe. Well, it is important to remember that the voluntariness is just plain irrelevant. It doesn''t matter where the impairment comes from. Once we know there is an impairment, the next question is, is this impairment affecting something that is one of life''s major activities? So of course an employer would again be entitled to documentation that there truly is some impairment and this impairment is affecting one of life''s major activities. When you are talking to a doctor, I really would ask the questions this way. I wouldn''t just ask the doctor for some conclusion. I would break out the questions to ask about each of these things we are talking about. Doctor, what is the impairment? Doctor what is the major life activity that is affected? What is it that this person can and can''t do? Now, it is important to remember on what our life''s major activities, that courts have been very, very broad in determining what are life''s major activities. They have generally been agreeing with everything that EEOC has said, you know the big ones, walking, seeing, hearing, speaking, eating. EEOC has been adding to the list of what are major life activities and courts have generally been agreeing with all of the things that EEOC has said. Courts have been very, very broad. In fact, it is actually very interesting to see where courts themselves have added to what are life''s major activities over the years. As an example in a case called Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196 (1998), the Supreme Court was dealing with a woman who had asymptomatic HIV and her claim was her dentist refused to treat her in his office. She said that was discriminatory. So the case went all the way up to the Supreme Court and the Supreme Court looked at the first the issue of whether she had a disability. They said No. 1, does she have an impairment? And interestingly, before the Bragdon case, courts had disagreed on whether HIV is an impairment, whether it is some disorder. The Supreme Court said of course it is. But the harder question was how is this affecting one of life''s major activities when of course if it is asymptomatic you have no symptoms. So what major life activity is being affected? That is where the Supreme Courted added safe reproduction as a major life activity. They said if someone has asymptomatic HIV, they can''t safely engage in reproduction. Now what is interesting is that in that decision, the Supreme Court also said that the sexual dynamics surrounding reproduction can be central to life itself. Well, that led some courts over the years to argue that maybe just plain sex could be a major life activity. The EEOC has never said that. Most courts haven''t addressed the issue but the Supreme Court certainly opened the door to say maybe plain sex could be a major life activity. I tell you what, since the Bragdon case two years ago some cases have dealt with just plain sex. For example, a case called McAlindin v. County of San Diego, 192 F.3d 1226 (9th Cir. 1999) where an employee who had a mental disorder said No. 1, my mental disorder affects my major life activities, but No. 2 the medication I''m taking affects the major life activity of sex. So in this case and it was a court of appeals case in California, the Court had to look at whether just plain sex is a major life activity. They said in California, it is. You know, other cases have dealt with just plain sex in other parts of the country and have also generally agreed that sex is a major life activity. For example, a case called Linser v. Ohio Department of Mental Health, 2000 U.S. App. LEXIS 25644 (6th Cir. 2000)(unpublished) where the Court had to analyze whether sex is a major life activity. Well, they said also in Ohio it is a major life activity. So far the courts have been very broad in terms of what are life''s major activities. And here even with an issue like sex courts have been determining sex is a major life activity.
Could I ask for clarification as we start out this live presentation bright and early on a Monday morning and somehow get-not off the subject, but into the subject of sex, when we are asking for a reasonable accommodation, though, whatever our substantial limitation is it has to relate to reasonable accommodation, isn''t that right? I can''t go into my employer''s office and say I''m substantially limited in the major life activity of sex, and ask for $3,000 piece of assistive technology for a whole new computer system or something if that is not related to my impairment; is that right?
Well, okay. You are asking a couple of questions.
Spell out for me how in the workplace situation somebody might be able to go in and actually say I''m substantially limited in the major life activity of sex, therefore you need to give me reasonable accommodation for X.
Yes, it is a great question. The way sex would come up, because you are right, Jennifer, a lot of human resource people or EEO people say, now how would this come up in the workplace? Sex as a major life activity because of course sex is not generally required for jobs, at least it is not supposed to be. So why would this come up in the workplace? It comes up when somebody says well, like in the McAlinden case, my mental disorder, even if the disorder was not substantially limiting my major life activities, my medication is and therefore my mental disorder qualifies as a disability that you have to accommodate. So you have to accommodate my mental disorder. It also comes up where somebody comes in to the supervisor and says I have some sexual dysfunction and I need time off to get treatment. So that would be leave is the accommodation I''m asking for and whether you have to give me leave as the accommodation in that case would depends on whether sex was a major life activity. You know where else it is coming up? I have seen this over the past year is in the Viagra cases where someone says your insurance plan doesn''t cover Viagra the way it covers other types of medication. Is that a disability based distinction? Well, it resolves around whether sex is a major life activity. So far interestingly courts do seem to be saying it is. So that is why it is important to remember that courts are being very broad on what are life''s major activities. Taking this back to the, one of the major issues we are talking about today, which is documentation, you know what? The employer is entitled to the documentation not only that there is an impairment but also there is a major life activity affected by the impairment and importantly, that sex could be one of those major life activities. On the issue of-that you were also sort of alluding to, Jennifer, how does this affect work? I''ve given you a couple of examples where the sex as a major life activity was not necessarily affecting work, but was affecting the accommodation that I need. I need leave to get treatment. Or affecting some benefit of employment. For example your benefit plan doesn''t cover the medications for sex. But also on this point there is a Brad new case only from about two weeks ago called Chenoweth v. Hillsborough County, 2001 U.S. App. LEXIS 8802 (11th Cir. 2001) where an employee with epilepsy said, No. 1 my epilepsy substantially limits my major activity, but she also said I''m substantially limited in safe reproduction. What she was asking for was an accommodation in where her work is performed that had nothing to do with the major life activity of safe reproduction, she wasn''t asking for an accommodation to get treatment for that major life activity. The Court in that case said even safe reproduction or even if sex is a major life activity, your impairment must somehow relate either to your work or to what you are asking for as an accommodation. So that is an interesting new case. It is the first case that really goes into that question. The question of whether the major life activity that you are saying is affected, whether that has to somehow relate to either the job or to the request for accommodation.
Now David could you explain for us, then, say in the event that my employer isn''t Burger King and they are not saying how do you want your accommodation? Let us help you. They are saying instead we are requiring documentation to show that you are a person with a disability. And so I am then going to my doctor to get that documentation. How should my doctor, you know, how should I be working with my doctor to provide that credible documentation?
Well, the first thing is that the employer needs to be asking the right questions. If the doctor simply gives a conclusion, this person has epilepsy therefore that is a disability. The employer would be entitled to get more information from the doctor. For example, what is the impairment? Okay the impairment is epilepsy. Then doctor what is affected by that epilepsy what can and can''t the person do so the employer can figure out if there is a major life activity affected. The employer would be entitled to more than simply a conclusion. The employee has to be encouraging the doctor to give that information. Because the next step of what the employer is entitled to is substantial limitation. We have only talked so far about the first two, is there some impairment and some major life activity. Frankly, Jennifer, those are the easy two. The hard one is the third. That is there a substantial limitation of that major life activity. Here is where the employer is frankly entitled to a fair amount of detail from the individual and from the doctor about what is the person really can do and can''t do in that major life activity. Again, a conclusion from the doctor is just not going to be enough that the person is substantially limited. The employer is really entitled to information from that doctor as to the nitty-gritty details of what the person can and can''t the do, so that the employer can determine if there is in fact a substantial limitation here. Now this takes us into what substantially limits means. What it means is the person can''t do the activity at all. If the doctor comes back to the employer and says through a note, for example this person is unable to do any walking or to do any standing or any lifting, that is going to be enough. But if it is not something that that is severe, well, then the employer is entitled to documentation showing the person''s condition is significantly restricted compared to the average person. This is where courts are saying employers are entitled to know really very specifically how much lifting can the person do. How much standing can the person do. So the employer can ultimately make the decision as to whether there is a substantial limitation compared to the average person. Courts really are getting into that level of detail. For example, there is a case called Schumacher v. General Security Services Corp., 2000 U.S. App. LEXIS 22395 (9th Cir. 2000)(unpublished) where the guy said I have a heart impairment, here is how bad my heart is. The Court said, well the employer of course is entitled to not know just about your heart impairment but about the average person''s heart for somebody of your age so that they can make a determination as to whether there is a substantial restriction, a significant restriction compared to the average person. Now in that case the Court ultimately determined no, you know, your heart is really just about as good as the average person so you don''t have a substantial limitation. The point here is that the employer is entitled and the individual has to, cooperate. Is entitled to the information, so that the employer can figure out what is it that you can and can''t do and how does it compare to the average person? Some cases really do get into a lot of detail. For example, a case called Wild v. Minntech Corp., 1999 U.S. App. LEXIS 19292 (8th Cir. 1999)(unpublished) the guy said because of my back pain I have difficulty lifting and sitting, standing, walking, and the Court got into all of the things the guy could do. He could still cut down trees, move and stack logs, fish, work out. So the employer would be entitled, if it wanted, it would be entitled to this information from the individual, from the doctor as to the things that he or she can and can''t do. What courts are saying is that the individual ultimately is going to have to show that there is a substantial limitation, not just some label. And that is why I''m saying the doctor can''t just give some conclusion, hey, this person has got bad hearing or this person has epilepsy. Another case a called Clemente v. Executive Airlines, Inc., 213 F.3d 25 (1st Cir. 2000), the woman said, I have an inability to perform sound localization, that is what her doctor''s notes reflected. The Court said no, that is not enough information. In court, she didn''t produce the evidence that her hearing limitation was significant compared to the average person. So in that case if the employer had wanted more documentation from the doctor as to exactly what she could and couldn''t do aside from some label, the employer would have been entitled to more. Another case called Smoke v. Wal-Mart Stores, Inc., 2000 U.S. App. LEXIS 2478 (10th Cir. 2000)(unpublished) where the doctor really only indicated she had middle insomnia. The Court said no, the employer is entitled to more than that, more than just that label, to know exactly how much she can and can''t sleep and how that compares to the average person. So courts are getting into that. There have been cases where the doctor has given documentation that someone had a certain percentage limitation. For example, a case called Long v. City of Leawood, 2000 U.S. App. LEXIS 273 (10th Cir. 2000)(unpublished) where the documentation from the doctor said this person has a 10 percent Workers'' Comp disability rating. The Court said what does that mean? If you were a human resource person or an EEO person trying to figure out if somebody had a disability when that person asked for reasonable accommodation you would be entitled to more documentation than just there is a 10 percent disability rating. You would be entitled to the documentation of the impairment, telling me that you have a 10 percent disability rating doesn''t even tell me that you have an impairment. So I would be entitled to the information you have an impairment, that impairment is affecting a major life activity and if I were a employer I would be entitled to the information as to what is the major life activity affected and how is it substantially limited. In other words the 10 percent doesn''t tell me anything. I want to know can you do this activity? What are your functional limitations of doing that activity? Another case along these lines called Faulkner v. ATC Vancom of Nevada Limited Partnership, 1999 U.S. App. LEXIS 31855 (9th Cir. 1999)(unpublished), the employee said I have a 40 percent disability rating. The Court again said the employer is entitled to more, to know if there is a substantial limitation. So again, taking this to the issue of documentation, the employer would be entitled to know exactly what it is that the person can and can''t do. Now substantially limits starts off with that question, what is it that you can and can''t do. But frankly there is another couple of questions that the employer would be entitled to documentation about. The second sub-question under what substantially limits means is how long is this condition going to last? An employer would be entitled and the individual really has to cooperate in getting the information about how long is this condition going to last. The reason is that short term conditions generally are not covered under the ADA and there have been cases saying that if a condition lasts for a month, a case called Hilburn v. Murata Electronics, 181 F.3d 1220 (11th Cir. 1999), a case said 38 days is not enough. A case called Oblas v. American Home Assurance Co., 1999 U.S. App. LEXIS 23371 (2d Cir. 1999)(unpublished), the case said a month is not enough. A case called McDonald v. Pennsylvania, 62 F.3d 92 (3d Cir. 1995), two months is not enough. So what is the difference between short and long term? Well, courts have not been so clear, but EEOC says several months is enough. Now even EEOC hasn''t told us what several means. Frankly, I interpret it to be about three months. Again, this is not legal advice, but I think if an employer has a rule saying if it lasts at least three months, then maybe it is no longer short term. That frankly is the type of documentation I would be looking for if I were an employer from the person''s doctor how long is this going to last? Is it going to last for more or less than three months? Remember, sometimes doctors will give you back a note saying this condition is only temporary. The employer needs to go back to that doctor and say, what does that mean? What in the world does temporary mean? Temporary could mean two weeks, or it could mean two years. Well, there is a big difference in terms of whether that is a short or long term condition. If something lasts for only two weeks, well, that is probably short term. Something lasts for two years, that is probably long term. So an employer needs to ask the right question from the doctor for the documentation. Not asking whether it is short or long term, but instead asking how long is the condition going to last? And once again the individual has to cooperate in getting that information from the doctor. It is important to remember that sometimes you will have an episodic disorder where the symptoms come and go, come and go. In that case, what an employer would be looking for in terms of documentation is, how often do the symptoms come and what happens when the symptoms arise? That is what EEOC and courts say they are going to look at in terms of whether this episodic condition is substantially limiting. There was a case called Taylor v. Phoenixville School District, 184 F.3d 296 (3rd Cir. 1999) where a plaintiff was treated 25 times during the year for her mental disability and she took medications each day. The Court said that is enough to be a substantial limitation. There was another case called Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944 (7th Cir. 2000), where the employee''s arthritis only flared up once or twice a year. The Court said that is not enough. So here when the employer is looking for documentation it should be asking the right question with regard to this episodic disorder, how often does it flare up and what happens when it does flare up? The third sub-question under what an employer should be getting in terms of documentation. The first sub-question, what can the person can and not do? Second sub-question, how long is it going to last? Third sub-question, should the employer be getting documentation of the person''s condition as medicated or as unmedicated? As you remember during our last call a year and a half ago we talked about Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139 (1999) where the Supreme Court said you can look at someone''s condition as corrected. Importantly, the Supreme Court did not say what many people in the press reported, that you should look at a condition as correctable. No, it didn''t say that. It said you look at the person''s condition as corrected if that person is correcting his condition. It is really an important distinction. Because I have heard from a lot of employers hey, shouldn''t we look at what this person''s condition would be like if he or she took his or her medication? And the answer is no. That is not the type of documentation an employer should be looking for. It is only if this person is correcting his condition that you look at this condition as corrected. That is what the Supreme Court said in the Sutton case. That is what courts have done since Sutton, looking at a person''s condition as corrected if that person is correcting the condition. For example a case called Hill v Kansas City, the Court looked at the hypertension as corrected because she was correcting her condition. A case called Ivy v. Jones, 192 F.3d 514 (5th Cir. 1999) the Court looked at the person with her hearing aids because she is wearing her hearing aids. If the person is not using medication, is not self-correcting the condition, the type of documentation the employer should be looking for from the doctor would be the person''s condition as it actually is because the Supreme Court in the Sutton case said we need to look at the person''s condition as it is, not what it might be or would be or could be. So if this person is choosing to not correct his or her condition, you know what? Although it doesn''t sometimes sound fair to employers, that frankly is what the employer should be looking for because that is what a court or what EEOC is generally going to be looking for. What is the person''s conditioning as it is, even if it is not being corrected, then we look at the person''s condition as uncorrected. Now Jennifer, a very practical issue comes up here and that is if the person is taking medication, should we only ask for documentation from the doctor about the condition as corrected? Because of course that is what I have just said, the Supreme Court said you can do. The person is correcting the condition, you can look at the condition as corrected. But here we are only talking about actual disability. Remember, there are two other categories of disability, there is a record of category and there is the regarded as category. What EEOC has said over the past year and a half is that in every single case where the person is taking medication, they are going to look in their investigations at the person''s condition before he or she went on the medication to see whether there might be a record of a condition. Because record of, of course, would look at the person''s history before he or she went on the medication. Was it substantially limiting before I started wearing my hearing aids? Was my insulin-dependent diabetes substantially limiting before I started taking insulin? Was my vision substantially limiting before I started wearing glasses? Was my depression substantially limiting before I started taking depression medication? This leads an employer to a dilemma. Since the Supreme Court said we can look at somebody''s condition as corrected, should we only ask for documentation of the person''s condition as corrected? My answer to that is no. I think that is a big mistake to only look at somebody''s condition as directed corrected. Remember that person might be able to show record of if there is a history before I started taking my medication of a substantially limiting condition. Now, having said all that, the way I would translate this into an actual policy, in getting documentation, is I would frankly look at or ask for documentation of what would the person''s condition be like as unmedicated. Get that type of documentation so that if you are an employer, you could figure out if this person might have a record of a disability. Because so far courts are split, there is only two courts out there on whether somebody with a record of disability gets reasonable accommodation. One court says yes, one court says no. EEOC on that issue says yes, the person gets a reasonable accommodation. But since courts right now are split, since an employer might well have to give a reasonable accommodation in a record of case, well, I would ask for documentation of what is this person''s condition like without medication so that I can determine if this person might have a record of disability that I might need to accommodate. Now, one logical question comes up here: What is there to accommodate if there is only a record of a condition? Well, if somebody is taking medication for depression and because of the medication the condition is no longer substantially limiting, that person might not have an actual disability. But that person might still need to go to therapy treatments because of the depression even though the depression is no longer substantially limiting. So there still is something to accommodate. If I were that person what I would be saying is I''ve got a record of a condition. Maybe it is no longer a current disability but it is a record of a disability. And since I have still limitations you need to accommodate those limitations.
David, can we open it up for questions?
Sure. Can I just take 30 seconds. That really is the third issue under substantially limits. The documentation, to sum it all up, that a employer would be entitled to is: 1) is there some impairment, 2) is there some major life activity, 3) is there a substantial limitation, and under that a employer would be entitled to documentation of 1) what is it that the person can and can''t do and 2) how long is the condition going to last, and 3) what is the person''s condition like as it actually is? But frankly I would also look at what the person''s condition would be like without medication. Just to conclude, the employee has to cooperate because there are loads of cases that say if the employee does not cooperate with all this, in getting all this documentation, the employer doesn''t have to give a reasonable accommodation. So it is really important for people who are advising employees and plaintiffs to make sure that the employee does cooperate. Jennifer?
Thanks David. You know part of that looks like we have set the structure up already for it to fail. Because here you have either the supervisor or the human resource person that knows all the questions to ask and then you have the doctor that is going to write the documentation. But the real key factor there is getting the employee with the disability informed on what exactly they need to ask their doctor. Because the human resource person isn''t going on the doctor''s appointment with the person, right? So do you have advice for the human resource person on how to present that information to the employee?
Well, you know, I don''t know if I''m understanding your question correctly, so stop me if I''m not answering your question. There is no duty in the ADA for an employer, aside from the general posting of the notice of ADA rights, there is no duty for employers to be disclosing all of these things to an employee. There is no duty there.
Exactly. So when I go to my supervisor or to human resources as an employee with a disability, and they say well, you need to get documentation. If I''m not really sure of all those questions, they are asking-
You are saying you are the employee.
I am the employee. If I''m not aware of all the questions they are actually going to be looking at when they look at the documentation, then we have more of a breakdown in the communication process.
Well, you know, it really is the HR person''s responsibility to know the right questions. It is not necessarily the employee''s responsibility. The employee''s responsibility is to make clear to the employer that hey, I''ve got this medical condition which could be a disability and I need some modification in the workplace because of it. Then the burden really shifts to the employer, to the HR person, to the EEO person to figure out if there is a disability. So from that perspective it is really the employer''s duty to be asking the right questions. Assuming the employer asks the right questions, it is the employee''s duty to cooperate. But the employee doesn''t have to be getting his or her doctor to answer more than the employer is asking. What I''m saying is the employer is entitled to, and should get all this information. The employee doesn''t really have to be doing anything.
And then the next question that logically comes up out of that who pays for the doctor''s visit?
Well, interestingly, the law doesn''t specifically address this. EEOC has suggested the employer should pay. And frankly, if I were giving legal advice, which I''m not, I would always say the employer should pay. The employer wants to pay anyway, should hopefully want to pay. The reason I would tell employers that you really do want to pay, otherwise you could be setting yourself up, I think you could be setting yourself up for some type of disparate impact case where it winds up being more expensive for a individual with a disability to get or keep a job because they have to pay for their doctor''s visit in order to determine disability in order to get reasonable accommodation. So from a practical perspective I would always tell employers you do want to pay.
While we are waiting for our next question, David let me ask you another one: What happens in the event that the diagnosis or the disability-related need changes over time? Can the employer ask for new documentation? Can they ask you to go back to your doctor for new documentation?
Yes, of course they can because the employer would be entitled to updated information about 1) is there still a disability, 2) what are your functional limitations because those may have changed and the employer may not need to provide an accommodation anymore if your functional limitations have changed. Jennifer, there is a case within the past year, called Kennedy v. Superior Printing Co., 215 F.3d 650 (6th Cir. 2000) where it really is right on this issue. The employer wanted updated medical information to verify that this employee was still entitled to a reasonable accommodation, in that case a modified schedule. The employee didn''t want to cooperate because the employee said, hey I think you are trying to justify stopping giving me that modification. The Court said the employer was entitled to that information, to see if there still was a need and to see what the functional limit tastes are. It is very, very important for employees to remember that an employer does have the right to question whether an accommodation is still needed and the employee has got to cooperate in getting that document nation or the employer might be justified in cutting off the accommodation.
David I have an on-line question here. Is it okay for a doctor to write no task? Or for example, this is a situation where a nurse is returning to work she has a hidden disability and on the documentation, on the doctor''s note the doctor had written no on-call duty. So the doctor wanted to restrict the nurse from being on-call. Is it okay to write something like that or in that type of situation would the employer be able to ask for more specifics?
Well, that is pretty specific. If the doctor has said no on-call. You can''t be on call, that probably is specific enough unless there is something I''m missing in that question. But an employee has to be really, really careful before getting a note that says something like that because courts have said that doctors notes can be very relevant evidence. Certainly they are relevant for all the things we have just been talking about, whether there is a disability, what the functional limitations are. The courts are saying these notes are also very relevant evidence as to whether somebody is qualified, remember you have to be a qualified person with a disability. There are lots of court cases out there if somebody''s doctor note says I can''t do such and such, and it is later determined that whatever that is was an essential function of the job, that doctor''s note could be evidence that the person is not qualified. For example, there are a number of cases, a case called Thompson v. Firestone Tire & Rubber Co., 2000 U.S. App. LEXIS 136 (10th Cir. 2000)(unpublished) where the individual''s doctor said I can''t do vibratory motion, repetitive motion. The Court found that those things were essential functions so the person''s own doctor''s note essentially was used against her to say even if she had a disability her own doctor is saying she can''t do the essential functions. Another case called Earl v. Mervyns, Inc., 207 F.3d 1361 (11th Cir. 2000) where the employee''s own doctor''s note said because of her obsessive compulsive disorder she couldn''t get to work on time. The Court ultimately found that getting to work on time was an essential function of her job. So her own doctor''s note was used against her. That is why I reacted the way I reacted to a doctor''s note saying this nurse can''t do any on-call. Of course I can''t tell whether on-call duties are or not an essential function of the nurse''s job. If they are an essential function of the nurse''s job and if her own doctor is saying she can''t do them. That could really hurt that person in showing that she is qualified.
I have one more on line question and then we will start to wrap up since we are coming up on the top of the hour. This is in regards to can an employer require the employee to go to the employer''s doctor? Or is there a need to give the employee the preference first to go to their own doctor?
EEOC in their guidance on reasonable accommodation that they came out with, let us see, it is been about a year and a half ago that they came out with their enforcement guidance which of course employers and individuals can find on line at www.eeoc.gov, they can see that guidance. EEOC says that the employer has to let the employee go to his or her own doctor first and should really sort of work through the employee''s doctor before sending the employee to the employer''s doctor. Now, to be honest, I would be surprised if courts enforced that. You may as well do it the safe way and start off with the employee''s doctor and then only if you are not getting enough information, send the person to the employer''s doctor. So it makes sense to let the employee get that information first. There are times, though, when the employee''s doctor maybe just isn''t credible. I mean some employers have said to me what if we have a doctor who keeps giving the same notes over and over and over? And the only thing different is that the prior person''s name was scratched out and there is a new name penciled in. In that case the employer might have some reason for doubting the credibility of the note and sending the person to another doctor. In that case, I always suggest an independent medical evaluator as being the best solution instead of the employer''s chosen doctor. I think an IME is a good idea. Somebody who has chosen by the employee and by the employer that way there is not the same credibility issue.
Thanks, David since we are coming up to the end of the hour I will throw it back to you if you have a brief closing comment.
The only thing I would say is that it is important for employees to remember that the employer is entitled to all this documentation. From an employer''s perspective, employers should really keep in mind you don''t want to be getting this documentation of disability generally unless the person has raised the issue. An employer shouldn''t just hey, be wondering about whether the person has a disability so I''m going to ask for this information. No, it is much more important for the employer to remember the only time I really want to get into this is if that person has asked for a accommodation and I''m trying to figure out if that person is covered under the law. Once again, I do think it is important to start off with a quick, simple, easy solution before you get into this documentation. But then if there is not that solution the employer can get all the documentation we have talked about to see if there is coverage, to see what the functional limitations are and to determine what it is, I as an employer, have to be doing to help this person. Remember the person has got to cooperate or they might lose their ADA rights.
Great, thanks David. Just like a grape, we try to squeeze as much out of you in 60 minutes as possible. Thanks so much for joining us. You have been an enormous amount of information in a very short time frame. So we do thank you very much for taking time out of your schedule to join us.
Thank you for having me.
I''m sure there are lots of you out there that still have questions on this issue. If you do please call your regional DBTAC. I would also like to make mention David does have a book "Resolving ADA Workplace Questions." That is available through the National Employment Law Institute. Is that right David?
That is right. There is a web site for that, too.
We will post that on the Great Lakes web site along with the transcript of this session in case you didn''t get all of the case citations. Those will be up on the Great Lakes web site at www.adagreatlakes.org. Please join us next month on July 17th for a special discussion with John Wodatch from the U.S. Department of Justice as he gives us a status report on ADA enforcement activities of DOJ over the last year and priorities for the upcoming year. Again for additional questions on upcoming sessions or general technical assistance on the Americans with Disabilities Act, contact your regional Disability and Business Technical Assistance Center at 800-949-4232. Thank you everyone for joining us today, we look forward to your participation in future sessions of the ADA Distance Learning Series.