In the age of virtual assistants, like Amazon Alexa and Google Assistant, we’ve become accustomed to the convenience of asking an artificial intelligence-powered device any question we can think of, and instantly receiving the information we need. We seek information that affects our daily living – Alexa, what’s the weather today? Or, hey Google, when do the West Virginia University Mountaineers play? We also seek information about topics related to history, science, art, politics, cooking, etc. Alexa, how many tablespoons are in a cup? Or, hey Google, who was the sixteenth president of the United States? Any question that comes to mind can be asked of these virtual assistants.
The JAN service is a little like these virtual assistants, but our staff is a lot more personal when it comes to providing the information our customers need. Also, we’re not necessarily experts in Dixie Cup facts, but the JAN staff are experts in disability employment, the Americans with Disabilities Act (ADA), and accommodation topics. The JAN staff respond to a broad range of inquiries related to the employment of individuals with disabilities. Many inquiries are fairly common, like – When is it time to engage in the interactive process under the ADA? Can employers request disability-related information from employees? Or, How can I ask my employer for reasonable accommodations at work? But we also receive questions that are complex, unusual, and unique to a specific situation.
This is an “Ask JAN” edition of the JAN Blog, where we answer random questions about a variety of ADA topics. It would be interesting to know how Alexa or Google might answer these questions, but today, we’ll Ask JAN.
Hey JAN…Co-workers are asking why an employee has a flexible schedule. She was accommodated for a disability-related reason. How can the manager respond to these questions?
Responding to co-worker questions about accommodations can be tricky because of the confidentiality requirements of the ADA, but it is possible to do so without revealing information about disability, accommodation, or the law. Before questions even arise, it can be useful to educate all employees about the ADA and accommodations as a way to curtail questions and concerns related to the provision of accommodations. Also, having a workplace culture that values workplace flexibility and supporting employees in ways that enable bringing your whole self to work can benefit everyone. This kind of culture emphasizes that employees can ask for changes at work to support their ability to meet both job-related and personal needs.
When responding to co-worker questions, a manager may find it useful to point out that it has a policy of assisting any employee who encounters difficulties in the workplace, that many workplace issues encountered by employees are personal, and that in these circumstances, it is the employer's policy to respect employee privacy.
For additional information about responding to co-worker questions about accommodations, see question 42 in the Equal Employment Opportunity Commission (EEOC) guidance on Reasonable Accommodation and Undue Hardship Under the ADA – May an employer tell other employees that an individual is receiving a reasonable accommodation when employees ask questions about a coworker with a disability?, and the JAN Blog article, The Manager’s Dilemma: “An employee is asking about a co-worker’s accommodation. As a manager, what do I say?”
Hey JAN…A job candidate asked to bring his service dog to the job interview. Can the interviewer ask if he’ll need to have the service dog with him on-the-job if hired?
During the hiring process, at the pre-offer stage, employers may not simply ask disability-related questions solely on the basis that it is apparent that an applicant has a disability. However, if it is known that an applicant has a disability AND the employer has good reason to believe that the individual’s ability to perform job duties will be impaired because of a known disability, then an employer may ask limited questions about the need for accommodation.
From a practical standpoint, the best thing might be to conduct the interview and then only discuss the need for the service animal if the applicant is offered the job. This way, the employer focuses on the job applicant’s qualifications and not on the employee’s disability or need for accommodation. In some cases, an employer might need to ask about the service animal as part of determining whether the applicant is qualified. For example, if the applicant is applying for a food service job, there will be work areas where the service animal is not allowed and the employer may need to make sure the applicant can perform the job without the service animal present at all times. For purposes of the job interview, this discussion should be brief and focused on job performance. Additional information about service animals in the workplace, can be found in JAN's publication, Service Animals in the Workplace.
Hey JAN…I have an employee requesting a sit/stand desk as an accommodation, but the employee’s disability isn’t obvious. Is there an ADA form I can use to request disability-related information from the employee?
Unlike some other federal laws, the ADA does not require employers to use standardized forms for ADA-related employment actions. JAN offers a number of sample forms that may be customized by employers and used to engage in the interactive accommodation process. The most widely requested sample form JAN offers is the Sample Medical Inquiry Form in Response to an Accommodation Request. This form is commonly used to obtain information from a healthcare provider to substantiate that an employee has a medical impairment, associated limitations, and requires accommodation under the ADA.
When a standard form is used to gather disability-related information in response to a request for accommodation, sometimes the employer may be asking for more information than is necessary or appropriate under the ADA. For this reason, employers are encouraged to customize a medical inquiry form each time it is used in order to only obtain the information that is necessary for each individual accommodation situation. For example, sections of the form could be highlighted for the healthcare provider to complete, questions may be added, or sections might be completely removed. It can also be useful to skip the form altogether, and instead, draft a customized letter to the healthcare provider that includes only the questions that are necessary to move forward in the interactive process to identify an effective reasonable accommodation.
Hey JAN…My employer told me I have five days to provide disability-related documentation from my healthcare provider to support my request for accommodation. How much time does the ADA allow for me to provide the requested documentation?
The ADA does not require an individual with a disability to provide disability-related documentation to support the need for a job accommodation within a specified time period. This is unlike some other federal laws. For example, the Family and Medical Leave Act (FMLA) requires the employee to provide complete and sufficient medical certification generally within fifteen calendar days after the employer’s request for information. Under the ADA, employers have the discretion to determine an appropriate timeframe for employees to submit sufficient disability-related information in support of a request for accommodation.
Keep in mind it can take some time for the employee to schedule an appointment with a healthcare provider, particularly with a specialist. Five days may not be enough time to obtain sufficient documentation. Individuals who believe their employer is likely to request disability-related documentation might be prepared to include a letter from their healthcare provider with their request for accommodation, or to schedule an appointment upon making the request for accommodation in order to obtain documentation in a timely manner. Because there is no required timeframe for submitting the documentation under the ADA, employers may find it useful to impose a similar timeframe to that expected for obtaining medical certification under the FMLA -- generally fifteen days.
Ultimately, it makes sense for an employee who requires an accommodation to obtain requested documentation as quickly as possible. Delays in providing disability-related information to establish ADA coverage can slow the interactive process and lead to a failure to receive reasonable accommodations. When the impairment and need for accommodation are known or obvious, employers can focus on gathering detailed information about the requested accommodation, rather than asking for unnecessary medical information. But, when medical information is necessary, employers may ask specific job-related medical questions about the individual’s impairment, limitations, ability to perform job duties, and need for accommodation, to make the process of obtaining information more efficient.
Hey JAN…When an employee exhausts twelve weeks of FMLA leave and still cannot return to work, or requires additional intermittent leave time due to a qualifying medical impairment, does the employer have an obligation to consider extending unpaid leave as a reasonable accommodation under the ADA?
The employer may have an obligation to consider extending unpaid leave as a reasonable accommodation under the ADA, unless it poses an undue hardship on the employer. This requires an interactive process to determine – on a case-by-case basis – if the employee has a disability and if it is possible to provide extended leave without it posing an undue hardship on business operations. It is a best practice to inquire about the need to extend leave under ADA when accrued leave and/or FMLA will expire/has expired and the employer knows or suspects that an employee with a possible disability will need additional leave.
Employers may find it useful to notify employees in advance, in writing, of the expected date of FMLA leave expiration and then request information regarding the ability to return to work, including an anticipated date of return. As part of this process, an employer may also inform employees of the right to engage in a discussion about accommodations under the ADA, either to assist them in returning to work or to request additional leave because they are unable to return to work upon the expiration of FMLA leave. If extended leave is needed under the ADA and the disability is not known, the employer may request disability-related documentation to substantiate the existence of an ADA qualifying disability and the need for leave as an accommodation. Not all employees who qualify for an FMLA leave of absence due to a serious health condition will qualify for an ADA accommodation, although many employees with medical impairments will.
Several resources are available regarding leave issues and the ADA. For more information, see:
- Employer-Provided Leave and the Americans with Disabilities Act
- ADA Leave Beyond FMLA
- Leave as an Accommodation
- Leave and Undue Hardship Under the ADA
That’s all for this “Ask JAN” edition of the JAN Blog. If you would like to ask the JAN staff a specific disability-employment, ADA, or accommodation question, contact the JAN service today.