ADA Documentation Request

WO

I just read from the HR Quicklist an article on Disability Discrimination. The article states that the employer should request from the employee a signed release allowing the employer to gather information directly from his health care provider. And that the refusal to provide the requested release could cause him to forfeit the right to accommodation under ADA.

Does anyone have a release as described above? I have an employee who is not eligible for FMLA out on medical leave, but is not communicating, refuses certified mail and does not return phone calls.

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 02-13-02 AT 00:23AM (CST)[/font][p]I'm not quite sure what a "release" authorization will do for you in this situation. If the employee is requesting reasonable accommodation on a claim of disability, and then fails or refuses to participate in the process to determine 1) whether the employee is disabled under ADA and 2) what if any reasonable accommodation is needed, then under ADA, the employee is not considered an ADA-qualified employee. You wouldn't have to complete the processing of the request or make any factual determinatinon on the "disability" status of the employee. But make sure you document your attempts to get the employee participating and that there is either a refusal or a clearly demonstrated lack participation in the process.

WO

Thanks for your quick response. My intent with the release was to provide documentation of the employer's attempt to engage in dialogue and gain information. The employee's agreement or refusal would also be valuable documentation.

I have physical capacity and restrictions type forms I have used but I was looking for something geared more toward ADA????

Gar

It seems to me that if the employee isn't cooperating, by not providing medical certification, and he refuses to communicate with you, he's AWOL and employment termination should be considered (job abandonment).

phbair

[font size="1" color="#FF0000"]LAST EDITED ON 02-14-02 AT 10:13AM (CST)[/font][p]We are using a release form, but its purpose is simply to facilitate the exchange of information relative to the employee's request for accommodation. Despite a number of court decisions holding that engaging in an interactive process is a requirement of the act for both employer and employee, I doubt if an employer could get away with refusing to accommodate based solely on an employee's refusal to sign a release.

The "Medical Release" we use is addressed to the provider of medical services, is signed by the employee, and states simply:

"I {Name of employee} hereby authorize you to disclose to {Name of DSC}, the Disability Services Coordinator for {employer}, and other employer representatives as necesary, any and all records and/or information relating to my {medical/psychological} condition - {Name of condition} - and its functional limitations for the purpose of evaluating my request for accommodation. I understand that I have no obligation whatsoever to disclose any information from my medical records, and all information disclosed pursuant to this Release shall be treated as confidential. I also understand that I may revoke this consent at any time by notifying you in writing of my decision, unless you have disclosed the information in reliance on my statement of consent. I further understand that any further disclosure of this information without my prior written consent is prohibited, except as necessary to process this accommodation request. I have read this form or have had it read and explained to me and I understand its contents."

Feel free to use it or not as you wish.

Gar

Perhaps I've missed something. Assuming the medical condition isn't apparent and the employee will not provide or allow you to seek medical information to establish that he has a disability, how can you afford him an accommodation?

phbair

Not suggesting that the accommodation be granted. But the employer must continue with the investigation with the tools at hand, as opposed to just dropping it. The Act places the burden on the employee to provide all documentation to support an accommodation request. If an employer denies a request because it does not have sufficient documentation to support the request, after attempting in good faith to engage in the interactive process, the responsibility should fall on the employee who did not.

NJODM

When an employee asks for an accommodation they must fill out a form which asks for medical documentation as well gives us any and all authorization for additional info.

if you would like this for let me know.

[email]dave.millstein@treas.state.nj.us[/email]

njjel

What if you KNOW the employee is disabled but they haven't requested an accommodation specifically other than they have asked for an extension of their leave of absence which will be beyond the 6 month disability leave policy?

phbair

This is not an easy, or unfortunately, unusual scenario. The ADA, EEOC regulations, and many court decisions affirm that the responsibility for claiming a disability (or requesting an accommodation) falls "almost" always on the employee. With courts looking more closely at claims of "perceived or regarded as" disability, and plaintiffs prevented from claiming an "actual" disability using this provision of the Act more frequently, one must be VERY careful in suggesting to an employee that s/he may have a disability. However, authority also provides that an employer may not just ignore a likely disability where it aparently interferes with an employee's ability to perform his/her job. Still, in your situation, I would recommend handling this person as you would with any other employee requesting an extension, and not make "special" arrangements because you suspect the employee may have a disability. As tough as it's getting to prove "actual" disability, the liklihood is that s/he does not have a qualifying disability anyway, so in my opinion, it's better to be cautious and not hand the employee a claim where one does not exist.

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 09-05-02 AT 07:03PM (CST)[/font][p]If the employer has documented a disability or a medical condition and has reason to believe it is causes or contributes to the work problem at hand, then the employer should inquire of the emplyee. For example, if the employee has already a documented disability in eyesight, and the employee is performing poorly in areas that seem to be related to eyesight, let's say, sewing or detailed work, then the employer should inquire of the employee whether the eyesight condition is possibly causing the poor work. If the employee then denies any connection that basically ends the reasonable accommodation issue for that time. If the employee brings up the known or documented disability at a later time as the cause, then the employer would have to consider reasonable accommodation. But in the meantime the employer is free to deal with the poor performance without getting invovled with reasonable accommodation determinations.

Also, if the employer does not know of a disability but suspects that there may be a medical issue, there is no problem in the employer asking the general question, "is there any problem that prevents you from meeting the requirements of the job" and seeing what the employee responds. This question should always be asked of any employee who is demonstrating a performance or conduct problem.

Remember, the employee doesn't have to specifically state "I want a reasonable accommodation" but since the employee must be a participant in the interactive process, a rejection or denial of a medical impariment causing the work issue effectively puts an end to that process at that time.

Further, if the employee seeks a continuation of a leave of absence on the claim that he or she is disabled and the leave woulnd't fall under FMLA or any other "legally-mandated" leave situation, then at that point, the employee is in essence saying "I need an accommodation due to my disability."

ADA doesn't require that the employee's request for a specific accommodation be granted even if the employee is in fact disabled under ADA and needs an accommodation. The employee by requesting an extension is putting you on notice that there is a need for a reasonable accommodation for the known disability. What that accommodation turns out to be will depend on the results of the interactive process in evaluating the reasonable accommodation options. The final decision after going through the process rests with the employer. The accommodation not only has to be reasonable it has to be effective. Leave is generally one of the last things to look at -- if there are other accommodations that would allow the employee to be at work and be "competent" in the work, then those should be looked at first.