Who is qualified to certify a disability?

lnield · July 2002

While the FMLA offers a list of qualified providers, I am hard pressed to find any such list for the ADA. Our situation: an employee brought in a note from a minister at a free counseling clinic stating that she was disabled due to depression and should be allowed to take off work "as needed". This minister has a PhD in theology, but no medical training that we can ascertain. First: is this person qualified to give such a diagnosis? Second: who can or cannot certify a disability? (I know we can request and pay for a second opinion, but is this guy even eligible to make such a call?) Third: is "as needed" a reasonble accomodation? (We run a 24-7 call center and live and die by the phones. While the absence of one rep would not cripple us, it would have a slight impact on our ability to answer the phones in a timely manner.)

Any opinions would be helpful...

L

System · July 2002

For the ADA, you don't need information from a doctor, but you certainly can request it. If this counselor isn't qualified to give an FMLA opinion, I wouldn't give much weight to his ADA opinion, either. You might want a second opinion.

"As needed" sounds a little vague for a reasonable ADA accommodation, but depression is pretty vague. And keep in mind that FMLA leave doesn't have to be reasonable.
[url]http://www.hrhero.com/findanattorney.shtml[/url]

James Sokolowski
Senior Editor
M. Lee Smith Publishers

Theresa Gegen TX · July 2002

To my knowledge, the only ones who can "certify" a disability is unfortunately a jury after the fact!!

What you need is specific information about the individuals medical restrictions to determine whether a disability exists. This would generally come from a medical doctor. But I would not ask a doctor about whether the individual is disabled. Dr's do not know what the term "disabled" means under the ADA. They may say (and many have in testimony and affidavits) that an employee is disabled due to a medical condition, but that conclusion may be rejected. Really, you need the specific medical limitations of the employee, then try to accommodate and don't worry about whether the employee is disabled or not!

Good Luck!!

Don D · July 2002

I love that first sentence of yours Theresa. With your permission I will use it in our in-house training. Don

lnield · July 2002

Go for it! I'm happy to oblige.

Hatchetman · July 2002

I suspect that EEOC and the courts would probably look to a licensed healthcare professional who has the legal ability to diagnose a medical condition as the appropriate indivdual to provide the needed information to the employer. The licensed professional of course must be licensed by the state in which he or she is practicing and under the license have the "right" to make the medical opinion. This could include medical doctors, and various specialists MD's, such as psychiatrists, or psychologists, or nurse-practitioners (if so licensed in the particular state to diagnose medical conditions).

EEOC's guidelines when it discusses medical examinations as part of a hiring process identifies in determining what a medical examination is, whether it was given and "interpreted" by a healthcare professional or "someone trained by a health care professional."

Actually, if you read the EEOC regulations and enforcement guidelines on ADA, you'll see it really isn't the treating healthcare professional who identifies the medical condition as an ADA disability or not, but the employer based upon all the input from the employee or applicant and the healthcare professional and other relevant, knowledgeable sources, such as family, providing information to fill in the blanks (a medical condition that significantly impairs one or more major life activities).

Theresa Gegen TX · July 2002

That sounds like a good idea Hatchman. But I can tell you that there are several cases where the courts have thrown out opinions of doctors that the person was "disabled." If the doctor just looks at the condition and says its a disability, that won't do it.

It needs to be an individualized assessment on how that condition effects a specific individual (in otherwords -- what are this person's limitations).

But the fun doesn't stop there!! Remember that under the law, the person must be substantially limited in a major life activity. So the person might be able to do everything at work, and still be substanially limited in a major life activity (for example, the person with AIDS who was substantially limited in reproduction). How an employer is susposed to know this is beyond me!! Seems like it would be an invasion of privacy to ask about those types of limitations. My advice to employers is to accommodate medical limitations (even if the employer thinks the person might not be disabled), unless the accommodation proves to be an undue hardship. And never take action against a person because of a medical condition.

Good Luck!!

Who is qualified to certify a disability?

Comments