Requesting ADA Information Tracie DeFreitas MS Lead Consultant ADA Specialist Job Accommodation Network JAN The ADA is a civil rights law signed into law on July 26 1990 by President George HW ID: 1032932
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1. 1Winning the “Bring Me a Rock” Game – Requesting ADA InformationTracie DeFreitas, MSLead Consultant, ADA SpecialistJob Accommodation Network (JAN)
2. The ADA is a civil rights law, signed into law on July 26, 1990, by President George H.W. Bush, that prohibits discrimination against individuals with disabilitiesDivided into five titles that relate to different areas of public life – JAN’s focus is on title I, employment2Celebrating 30 Years of the ADA!
3. Bring me a rock…Bring me a note from your health care provider.Fill out these ADA forms (that we give to everyone).The information about your limitations isn’t sufficient.The individual will need light duty.The individual will need a flexible schedule, as-needed.The individual will need leave indefinitely.3ADA Documentation
4. What’s the objective?To establish impairment and limitationsTo understand the impact of the impairment and limitations on employee and workTo support the need for accommodationTo learn about ability to return to workTo evaluate fitness for dutyTo analyze safety/direct threat Requests should be well designed and purposeful.4ADA Documentation
5. Disability-related Inquiry Rules: Three StagesPre-offer: Generally, no non-voluntary disability-related inquiries or medical exams of applicants until after a conditional job offer is madePost-offer: Disability-related inquiries and medical exams can be required if required for all candidates entering into the same job categoryEmployed: Disability-related inquiries and medical exams of employees must be "job-related and consistent with business necessity”5Disability-related Information & ADAhttps://AskJAN.org/topics/medexinq.cfm
6. When is a disability-related inquiry or exam job-related and consistent with business necessity?When there is a reasonable belief, based on objective evidence, that:performance of job functions will be/is impaired by a medical impairment or there is a direct threat due to a known medical impairmentUsually, after accommodation is requested – when disability and/or need for accommodation are not known or obviousExams for public safety positions (e.g., police, fire)When there is a known disability that is affecting performance/conduct – but no RA request has been made6ADA Documentation
7. Is an employer required to request disability-related documentation as part of the interactive process under the ADA?No mandate to obtain disability-related documentation for ADA purposesEmployer is permitted to request documentation to establish ADA rights and responsibilitiesNo required process for requesting documentationNo required ADA form or method for obtainingNo specified timeframe for employee to respond7ADA Documentationhttps://AskJAN.org/articles/Requests-For-Medical-Documentation-and-the-ADA.cfm
8. Establish coverage, but don’t get stuck in the process of determining “disability”Definition of disability is to be interpreted broadly – without requiring significant analysisWhat is known about the individual’s past or present medical impairment?What is known about the individual’s past or present limitations, and how the limitations affect performance of job duties, or ability to meet performance/conduct standards?What is known about the need for accommodation?Is it possible to provide a reasonable accommodation?8ADA Documentationhttps://AskJAN.org/topics/defofdis.cfm
9. Ask appropriate and purposeful questions: What is the nature of the impairment and what are the limitations/restrictions?How long is the impairment expected to last, and what is the expected duration of limitations/restrictions?What is the impact of the impairment/limitations on performing job duties or meeting standards?Will an accommodation enable the individual to overcome work-related barriers?For what duration will the accommodation be needed?Use available resourcesJAN’s Sample Medical InquiryJAN’s Sample Medical Inquiry - Leave9ADA Documentation
10. Practical GuidanceWhen the impairment is obvious, disability-related documentation may not be necessary When impairment and/or need for accommodation is known or obvious, focus on requesting information about the accommodation, not the impairmentHoops Theory – when request is for access to the same workplace adjustments/benefits or privileges available to employees without disabilities, disability-related information is not needed10To Ask, or Not to Ask?https://AskJAN.org/articles/To-Ask-or-Not-to-Ask-Knowing-When-to-Request-Medical-Information.cfmhttps://AskJAN.org/articles/Mother-May-I-Must-I-Should-I.cfm
11. Practical GuidanceWhen impairment and/or need for accommodation is not known or obvious, may ask disability-related questions and/or request reasonable documentationAsk the individual for more detailed information about their impairment, limitations, need for accommodation, and then decide what additional information is neededKeep your objective in focus! 11To Ask, or Not to Ask?https://AskJAN.org/articles/To-Ask-or-Not-to-Ask-Knowing-When-to-Request-Medical-Information.cfm
12. Practical GuidanceAsk, How can I help?...No mention of disability or accommodation means no worrying about ADA disability-related inquiry rulesExtends support, creates a safe space for disability disclosure, and may lead to engagement in the interactive process – and a request for disability-related documentation12How Can I Help?https://AskJAN.org/blogs/jan/2018/10/how-can-i-help.cfmhttps://AskJAN.org/articles/Mother-May-I-Must-I-Should-I.cfmHow can I help?
13. What documentation may be required from an employee who requests accommodation?Reasonable and sufficient documentationSufficient documentation substantiates disability and need for accommodation:Whether the individual has (or had) an impairmentWhether the impairment affects (or affected) a major life activityWhether the impairment substantially limits (or limited) the major life activityWhat limitations are causing the problemWhether/what accommodation(s) is needed13ADA Documentationhttps://AskJAN.org/articles/Medical-Documentation-Think-about-What-is-Needed-and-Stop-There.cfmhttps://AskJAN.org/articles/What-Does-Sufficient-Mean-A-Deconstructive-Series-for-ADA-Terminology.cfm
14. When might documentation be considered insufficient for ADA purposes?Does not specify the existence of an ADA disability and explain the need for reasonable accommodationDoes not specify the functional limitations due to the impairment Health care professional does not have the expertise to give an opinion about the impairment and limitations imposed Information is not credible or is fraudulent14ADA Documentation#10, Disability-Related Inquiries & Medical Examinations of Employees, EEOC, 2000
15. Disability-related Information Request FailuresAsking for information that is already availableNot asking purposeful questionsRequiring a release for complete medical records or requesting too much informationRequiring information to come from a medical doctor Requiring re-certification – monthly, annually, etc.Requesting an IME or fitness for duty exam that is not job-related and consistent with business necessity15ADA Documentation
16. Who can provide disability-related information for ADA purposes?Appropriate health care or rehabilitation professional who is familiar with the individual's impairment and functional limitationsDoctor, physician assistant, nurse practitioner, psychiatrist, psychologist, counselor, etc.Vocational rehabilitation specialist, job coach, occupational or physical therapist, social worker, etc.“Non-traditional” health care providers – chiropractor, acupuncturist, reflexologist, etc.16ADA Documentation#6, Reasonable Accommodation and Undue Hardship. EEOC, 2002https://AskJAN.org/articles/Here-s-a-Note-from-my-Dentist.cfmhttps://AskJAN.org/articles/Can-Non-traditional-Health-Care-Providers-Provide-Medical-Documentation.cfm
17. Is it appropriate to request a release of complete medical records for ADA purposes?EEOC – Do not use a medical release form that constitutes a general release for all medical recordsAllow the individual the opportunity to obtain the information directly – no need for medical releaseUse a customizable form or letter requesting specific job-related informationJAN’s Sample Medical Inquiry in Response to an Accommodation RequestJAN’s Sample Medical Inquiry in Response to a Request for Leave as an Accommodation17Accessing Documentation#10, Disability-Related Inquiries & Medical Examinations of Employees, EEOC, 2000
18. What if the ADA information that is needed is not received, or is insufficient?Be clear about what is needed and why – to establish impairment and provide reasonable accommodationAsk specific job-related questions about impairment and limitations, impact on performing job duties, and need for accommodation – don’t just send a job description!Request that information be provided within a reasonable time frame (e.g., fifteen calendar days)Remind the employee, in writing, when the deadline is approaching18Avoiding “The Waiting Place”https://AskJAN.org/blogs/jan/2016/05/avoiding-the-waiting-place-after-requesting-medical-information.cfm
19. Issue a notice that explains that sufficient information was not received – consider extending the deadlineIf documentation was provided but is insufficient, explain why and what is needed, and allow time to cure the insufficiencySeek clarification re: documentation in the most productive and efficient way (e.g., explain what is needed, contact HCP directly)May request that the individual go to a health care professional of the employer's choice if sufficient information is not provided – employer pays all medical costsFailure to provide sufficient documentation? Not entitled to receive accommodation under the ADA – document effort to obtain information and next steps in the IP19Avoiding “The Waiting Place” (2)https://AskJAN.org/blogs/jan/2016/05/avoiding-the-waiting-place-after-requesting-medical-information.cfm#11 Disability-Related Inquiries & Medical Examinations of Employees, EEOC, 2000
20. What if the individual is unable to obtain documentation for ADA purposes?Consider effort and reasons, be flexible, but do what is needed to obtain sufficient informationHCP will not complete documentationIndividual does not have health insuranceInformation is datedIndividual was diagnosed before eighteen years of age (e.g., LD, intellectual imp)20Adapting to the Circumstanceshttps://AskJAN.org/publications/consultants-corner/vol05iss03.cfm
21. When can employees be asked to provide updated disability-related information about their ongoing need for accommodation?When original documentation indicates the impairment/limitations/need for accommodation will change No duration for the need for accommodation was originally provided Original duration is nearing expiration and it is known that accommodation is still neededWhen there is a change in impairment/limitations/ability to perform job duties/meet standards, or employer’s ability to accommodateWhen accommodations are being monitored for effectiveness and employee indicates a need for a change that requires additional information21Recertifying Accommodations#5 Disability-Related Inquiries & Medical Examinations of Employees, EEOC, 2000https://AskJAN.org/articles/Recertifying-the-Ongoing-Need-for-Accommodation.cfm
22. What is a health care provider’s role in providing disability-related information?To provide information about:The diagnosed impairment or a general statement about the medical conditionWhat major life activity the impairment substantially limitsWhat limitations are causing the patient’s work-related problems and what those problems areNOT to recommend or say that accommodation is medically requiredNOT to lock the patient into one accommodation22https://AskJAN.org/articles/EAPS/upload/medprofessionsEAP.docADA Documentation
23. Know the disability-related inquiry rules applied under state law!Some state statutes restrict requesting a diagnosis or detailed information. For example, in California (FEHA certification):Verification that the employee has a disability (but not the diagnosis)Description of how limitations impair ability to perform the duties of the job, indication of whether these limitations are temporary or permanent, and expected durationContact state fair employment practices agency23https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/Request4ReasonableAccommodationPackage.pdfADA Documentation
24. Interplay of Relevant Federal Laws Health Insurance Portability and Accountability Act (HIPAA)Does not affect right to request disability-related documentation for ADA purposesExpress consent for health care provider to directly share infoGenetic Information Nondiscrimination Act (GINA)Prohibits requesting or requiring genetic information of an individual or family memberFamily and Medical Leave Act (FMLA)Certification of a serious health condition24ADA Documentation: Special Topicshttps://AskJAN.org/articles/HIPAA-and-Consent-to-Obtain-Medical-Information-for-ADA-Purposes.cfmhttps://www.dol.gov/agencies/whd/fmlahttps://www.eeoc.gov/eeoc/publications/fs-gina.cfm
25. Return-to-Work Release, Fitness-for-Duty Certificate, and Fitness-for-Duty ExamReturn-to-work release may be requested as a matter of policy (e.g., after an absence of 5 days)Fitness-for-duty certificate can be requested for FMLA purposes if notified in advance – a signed statement from a health care provider indicating the employee is able to return to workFitness-for-duty examination must be job related and consistent with business necessity under the ADA25ADA Documentation: Special Topics
26. Documentation Related to Access for AnimalDocumentation about the disabilityDocumentation/demonstration of need for a serviceor emotional support animalDocumentation about appropriate training,that it will not disrupt the workplaceOther sources may explain need for the animal and that the animal is appropriately trained26ADA Documentation: Special Topicshttps://AskJAN.org/topics/servanim.cfm
27. Confidentiality of Disability-related InformationMust maintain the confidentiality of all medical informationMedical file in a separate, locked cabinet, apart from the location of personnel filesDesignate a specific person or persons to have accessSupervisors and managers may be informed about necessary restrictions on the work or duties of an employee and necessary accommodations – restrict access to specific medical information27ADA Documentation: Special Topicshttps://AskJAN.org/publications/ada-specific/Technical-Assistance-Manual-for-Title-I-of-the-ADA.cfm#spy-scroll-heading-57https://AskJAN.org/publications/consultants-corner/vol11iss01.cfm
28. COVID 19 – CoronavirusEEOC – ADA and Rehabilitation Act rules apply, but do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC about steps employers should take regarding the CoronavirusInquiries must be job-related and consistent with business necessityMay ask questions about exposure during a tripMay encourage employees to telework May request documentation re: fitness to return to work28ADA Documentation: Special Topicshttps://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfmhttps://www.eeoc.gov/facts/pandemic_flu.html
29. Remember the ObjectiveTo establish impairment and limitationsTo understand the impact of the impairment and limitations on employee and workTo support the need for accommodationTo learn about ability to return to workTo evaluate fitness for dutyTo analyze safety/direct threatInquiries and exams should be well designed and purposeful.29Bring Me a Rock…
30. Equal Employment Opportunity CommissionDisability-Related Inquiries and Medical Examinations of Employees Reasonable Accommodation and Undue Hardship Under the ADAADA Technical Assistance Manual, Title I, Chapter 6What You Should Know About the ADA, the Rehabilitation Act and the CoronavirusPandemic Preparedness in the Workplace and the ADA30Resources
31. JAN Sample FormsSample Medical Inquiry Form in Response to an Accommodation RequestSample Medical Inquiry Form in Response to a Request for LeaveAskJAN.org Resources Definition of DisabilityRequests for Medical Documentation and the ADATo Ask or Not to Ask – Knowing When to Request Medical DocumentationMother May I, Must I, Should I?31Resources
32. AskJAN.org Resources Continued How Can I Help?Medical Documentation – Think About What is Needed and Stop ThereWhat does sufficient mean? – A Deconstructive Series for ADA TerminologyHere’s a Note from My DentistAvoiding the “Waiting Place” After Requesting Medical DocumentationCan “Non-Traditional” Healthcare Providers Provide Medical Documentation32Resources
33. AskJAN.org Resources ContinuedDocumentation of a Learning DisabilityRecertifying the On-going Need for AccommodationPractical Guidance for Medical Professionals: Providing Sufficient Medical Documentation in Support of a Patient's Accommodation RequestHIPAA and Consent to Obtain Medical Information for ADA PurposesAccommodation and Compliance Series: Service Animals as Workplace AccommodationsConfidentiality of Medical Information Under the ADA33Resources
34. Other Resources State Fair Employment Practices AgenciesCalifornia Fair Employment and Housing Act Reasonable Accommodation Request PackageFamily and Medical Leave Act Facts About the Genetic Information Nondiscrimination Act34Resources
35. 35 Questions?
36. 36Contact JAN (800) 526-7234 (V) - (877) 781-9403 (TTY)AskJAN.orgjan@AskJAN.org(304) 216-8189 via Textjanconsultants via SkypeThank you for attending!