Can an employer ask an employee for medical documentation multiple times to 'recertify' a disability? What is an employer's obligation if they suspect that an employee needs reasonable accommodations? This edition of Ask About the ADA is all about when an employer can ask for documentation about a disability, and what to do when an employee does not disclose a disability.
NortheastADA.org
Can an employer ask an employee for medical documentation multiple times to 'recertify' a disability? What is an employer's obligation if they suspect that an employee needs reasonable accommodations? This edition of Ask About the ADA is all about when an employer can ask for documentation about a disability, and what to do when an employee does not disclose a disability.
NortheastADA.org
JOE ZESSKI: Hello Welcome to Ask About the ADA, the podcast where we answer your questions about the Americans with Disabilities Act and how it applies to your everyday life.
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I'm Joe Zesski, the program manager here at the Northeast ADA Center, and we're here as a resource for you to answer questions about the ADA. On this week's edition of the podcast, we're going to be tackling two different types of employment-related issues. So with that being said, let's begin.
The first question comes from the perspective of the employer. If an employer sees an employee struggling with job duties, does the employer have an obligation to ask if any accommodation is needed, even without receiving an accommodation request from the employee?
Well, the very short answer is that no. Technically, there is no obligation in that case. All that being said, though, a healthier and more supportive work culture would have an employer take a different route. In this case, a supervisor should sit down and have a conversation with the employee to talk about concerns regarding any job performance and to ask if there is any need for additional support in order to do the job.
While the supervisor can't ask a person directly if they have a disability, assuming that they have no knowledge or awareness of it ahead of time, the supervisor could note a change in performance, ask if any additional supports are needed for them in order to do the job, and basically create a space where the employee, if they do have a disability and if they do have an accommodation need, could feel comfortable sharing and disclosing that they do have a disability.
And in a larger sense, an employer should work to create a more inclusive work environment that would allow employees to feel comfortable to share disability accommodation needs that they may have. There are a lot of good resources out there on how to build a more welcoming and inclusive environment for employees with disabilities. You can find them both on our website northeastada.org. And you can also look at askearn-- A-S-K-E-A-R-N-- .org and look at some of the toolkits that they have on that website. For example, they have a mental health toolkit where the first pillar that they describe is to build awareness and a supportive culture. It's an excellent resource.
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Our second question comes from the employee perspective. Can an employer ask for verification of a disability and an accommodation every year? And in this instance, as with so many different ADA-related issues, the answer truly is it depends. First of all, an employer does have a right for a periodic check on a disability, if the original documentation of a person's disability wasn't clear or didn't indicate that the condition is permanent or unlikely to change. Additionally, if the original documentation didn't provide enough or sufficient information, then that might be another reason why an employer could justify requesting additional documentation a year into an accommodation. The need to recertify a disability has to be job-related and consistent with business necessity. That's a specific set of terms that come from the regulations for Title I of the ADA, which governs employment and related provisions.
Generally, though, the original documentation about a disability should be enough, should be sufficient. According to the Equal Employment Opportunity Commission, that's the federal agency that enforces Title I, which is employment under the ADA, employers cannot ask for documentation of a disability when the disability and the need for an accommodation are known, or obvious, or if the employee has already provided the employer with sufficient information. So what are examples of employers not having enough information or a change in a disability that might warrant more information and documentation?
Well, one example could be when the original documentation of a disability indicates that the disability could change. So, for example, let's say a person has multiple sclerosis. The impact and effects of that disability can vary and change over time. And so in that instance getting additional reverification of disability might be appropriate from the employer.
Another instance could be when the documentation didn't indicate how long a modification or change was needed. So let's say someone had requested for a change or schedule, but the information that was provided to the employer never indicated if this would need to be a permanent change, if it was something that would last for a month, or four months, or six weeks. In those instances, getting follow-up documentation and verification that an accommodation is still needed would be appropriate.
On the other hand, let's say that a time frame for an accommodation need was given but, as the end of that time frame approaches, it's obvious to the employer that the need that started the request, perhaps, let's say, healing from a surgery, still isn't complete and the person still requires an additional accommodation. Well, in that instance, again, the employer certainly can request more details and Information.
And, of course, there are instances where an accommodation is provided, let's say a screen magnifier for someone who is low vision, but that person's condition changes and perhaps their needs change. Well, in that case, new documentation to determine what is appropriate as a potential accommodation is something that the employer should pursue. So there are different cases where more or further documentation can be requested, but, again, a lot of this depends on the circumstance of the individual, how their disability is impacted and impacting their work, and the accommodations that they have been provided.
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I hope you've enjoyed this week's edition of Ask About the ADA. As always, if you have questions about employment or any other aspect of the law, please feel free to contact us here at the Northeast ADA. You can do so by phone at 1-800-949-4232. You can visit our website at northeastada.org. And, of course, you can follow us on social media. Thanks as always to Grace Fairchild, the producer for our podcast. And thanks as well to Peter Quinn of the Yang-Tan Institute for doing further edits on the show and making a sound as good as can be. And thank you all for listening and being a part of the conversation.
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