From the desk of Tracie DeFreitas, M.S., Program Leader, Director of Training, Services, and Outreach
Workplace flexibility that includes work arrangements like working at home and alternative and flexible scheduling is surging as many employers have been forced to adjust where, when, and how their workforce operates. Employers are implementing employment policies that allow, and sometimes require, employees to work in flexible ways to maintain business operations. But while some workplaces have embraced this flexibility, others still only offer flexible work arrangements either as a privilege or benefit of employment, or a job accommodation provided only to employees with disabilities who qualify and when reasonable.
Employers who are asked to provide flexible work arrangements must sometimes decide whether to request information or an explanation from an employee in order to approve this type of request. When an employer generally allows flexible work arrangements as a policy or practice, often no information is required to be provided by employees. However, it’s not uncommon for a supervisor or manager to trip up when an employee requests access to workplace flexibility for a disability-related reason and to make the possible misstep of requesting medical documentation. This is when it’s important to keep the Americans with Disabilities Act (ADA) in mind.
Why is it a possible ADA misstep to ask for medical information?
Consider for a moment how employees without disabilities are generally treated when workplace flexibility is requested in accordance with an employer’s current policy or practice. For example, AccommSol company has a policy that allows alternative and flexible scheduling for employees in the advertising department. When Amaya requests to work a compressed work schedule in order to be off on Wednesdays to provide care for her eighty-three-year-old mother, who requires dialysis, the employer does not ask for a note from her mother’s health care provider to approve the schedule. Amaya is granted the schedule she requests as a matter of policy.
In another example, Keaton works in the same department and requests to flex his work schedule two days a week in order to attend group therapy sessions in the morning as part of his alcoholism recovery process. Keaton should not be asked to provide medical documentation to approve this request simply because his reason for requesting the flexible work schedule supports recovery and treatment for alcoholism. AccommSol’s policy entitles Keaton to a flexible work arrangement without the need to provide documentation or an explanation.
When flexible work arrangements are available to all employees as a matter of policy or practice and no information or explanation is required, or no criteria must be met to receive this flexibility, then an employee with a disability who requests access to the flexibility afforded to others — like working at home a couple days a week or flexing a work schedule and making up time missed — should not be required to provide medical information to receive this flexibility.
It’s not uncommon when a disability or medical reason is mentioned in the type of situation described above, that a supervisor or human resources manager might believe that the ADA is triggered and there is a duty to engage in the interactive process. The mere mention of disability can lead some to believe the request for access to the same flexibility available to others requires a different process. But it’s important to recognize when a request for a flexible work arrangement should be handled as a request for accommodation under the ADA, and when it should not. It is also important to keep disability-based discrimination in mind.
What does this have to do with keeping discrimination in mind?
Using a familiar idiom, if the flexible work arrangement an employee with a disability is asking for is something any employee would or could ask for, an employer should not require an employee with a disability to jump through unnecessary hoops, for example to provide medical information when employees without disabilities are not required to provide it. Using Keaton’s example above, if the supervisor asks for a note from Keaton’s therapist to confirm that he wishes to flex the work schedule to attend group therapy sessions, this is requiring Keaton to jump through extra hoops — to take additional steps and be held to a different standard — to access the flexibility that is available to everyone in his department as a matter of policy.
This is treating someone differently on the basis of disability, just because a medical condition is the reason for the requested flexibility. If an employee is eligible for a flexible work arrangement based on policy, practice, or the terms of their employment, an eligible employee with a disability should not be held to a different standard to receive an available flexible work arrangement. This type of situation could be interpreted as discrimination under the ADA because the employee with a disability is being treated disparately than employees without disabilities.
When might it be appropriate to request medical information for ADA purposes?
Knowing when it might be appropriate to engage in the interactive process under the ADA will depend on whether an employee with a disability is requesting access to a workplace flexibility that is available to other employees or is requesting access to flexibility that goes beyond the parameters of the employer’s policy or practice — whether the employee is requesting an exception, something different.
For example, at the discretion of management YouCanDo employees are permitted to work at home two days a week. Jade requests and was granted this flexible work arrangement. As a matter of policy, no information or explanation was required by management to permit Jade to work at home two days a week. Jade was afforded access to the flexible work arrangement available to all employees. No information is required to approve this request, and this IS NOT a request for accommodation under the ADA.
After working at home for two months, Jade recognizes that she is more focused and organized, is much less anxious, and performs at a higher level than when she is in the office. Jade has attention deficit disorder (ADD) and generalized anxiety disorder (GAD). Due to distractions and constant interruptions, Jade has significant difficulty performing the essential duties of the job while in the office environment. Jade requests to work at home five days a week, for disability-related reasons. This IS a request for accommodation under the ADA, and further information may be requested.
Using the example above, if an employee with a disability requests access to a flexible work arrangement for a disability-related reason, and that flexibility is not generally available to employees without disabilities as a matter of policy or practice, it might be appropriate to engage in the interactive process under the ADA. Assuming Jade’s disability or need for accommodation is not known or obvious, the employer may request medical information to determine if Jade has an ADA disability and can benefit from the accommodation of working at home five days a week. When an individual with a disability requests access to a flexible work arrangement that goes beyond the flexibility that is ordinarily available to employees without disabilities, for a disability-related reason, this can be treated as an accommodation request under the ADA.
Key questions to consider when deciding whether medical information may be requested under the ADA to provide access to a flexible work arrangement:
- Is the flexible work arrangement generally available to employees as a matter of policy or practice?
- Is the employee who is requesting flexibility generally entitled to the flexible work arrangement requested?
- Is information or an explanation ordinarily required in order to provide access to the flexible work arrangement allowed by policy or practice?
- Is the employee requesting, for a disability-related reason, access to a flexible work arrangement that goes beyond the scope of flexibility that is generally available to employees or of which they are entitled?
There has been a significant transformational shift around workplace flexibility that has resulted in many organizations embracing benefits that flexible work arrangements offer – particularly related to working at home. Still, questions arise related to applying flexibility when it is requested for a disability-related reason. For assistance with these tricky ADA and accommodation questions, chat with JAN staff at AskJAN.org.