How To Handle Insufficient Medical Documentation in Support of an Employee’s Disability Accommodation Request

by Obermayer Rebmann Maxwell & Hippel LLP
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Workplace accommodation issues under the Americans with Disabilities Act (ADA) can be tricky to navigate especially if the employee’s supporting medical documentation is insufficient. This often occurs in situations where the medical documentation only lists the medical condition but does not specify how it relates to a requested workplace accommodation or the health care professional does not have the expertise to issue an opinion on the medical condition. An employer may require that the employee provide sufficient supporting medical documentation prior to granting the accommodation request when the disability and need for accommodation are not obvious. However, a recent decision in Gilreath v. Cumberland County Board of Education, Civ. A. No. 11-0627, 2014 U.S. Dist. LEXIS 105904 (E.D.N.C. July 31, 2014), serves as an important reminder to employers that it is incumbent upon the employer to explain why the medical documentation is insufficient and allow the employee an opportunity to provide the missing information in a timely manner. The following guidance provides clarification on the rules surrounding medical documentation in support of disability accommodation requests.

What constitutes sufficient medical documentation?

Medical documentation is sufficient if it:

  • describes the nature, severity, and duration of the employee’s impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits the employee’s ability to perform the activity or activities; and
  • substantiates why the requested reasonable accommodation is needed.

In contrast, documentation is insufficient if it does not specify the existence of an ADA disability and explain the need for reasonable accommodation. In its Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act, the EEOC explains that documentation also may be insufficient where, for example:

  • the health care professional does not have the expertise to give an opinion about the employee’s medical condition and the limitations imposed by it;

  • the information does not specify the functional limitations due to the disability; or
  • other factors indicate that the information provided is not credible or is fraudulent.

The EEOC cautions that once sufficient documentation has been provided, continued efforts by the employer to require that the individual provide more documentation and/or submit to a medical examination could be considered retaliation. However, an employer that requests additional information or requires a medical examination based on a good faith belief that the documentation the employee submitted is insufficient would not be liable for retaliation. Further, the EEOC warns that an employer cannot ask for unrelated documentation, such as an employee’s complete medical records, because the records are likely to contain information unrelated to the disability at issue and the need for accommodation.

What steps must an employer take if the employee provides insufficient medical documentation?

It is incumbent upon the employer to promptly communicate to the employee that the medical documentation is insufficient and allow the employee a reasonable amount of time to provide proper documentation.

For example, in Gilreath v. Cumberland County Board of Education, the employee met with his supervisor to request several workplace accommodations explaining that he had been “dealing with some medical issues” and provided the supervisor with a note from his psychotherapist (dated six years earlier) that mentioned he had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). In response, the supervisor informed the employee that he would need more recent medical documentation regarding the employee’s medical issues in order to assist the employee. Approximately one month later, the supervisor followed up with a letter to the employee stating that the employee was required to submit a doctor’s note indicating job limitations that would prevent him from fulfilling his duties. Approximately three months later, the supervisor again reiterated to the employee the need for supporting medical documentation if there were conditions that affected his ability to perform his duties. Subsequently, the employee provided his supervisor with a medical history summary from his physician and a letter authored by the employee requesting that he be provided with various accommodations. The employer determined that the medical history summary provided by the employee’s doctor was insufficient to support the employee’s request for disability accommodations because it failed to substantiate why such accommodations were needed. The supervisor did not communicate the insufficiency to the employee. The employer eventually granted some of the employee’s accommodation requests over the course of the next two years during which time the employee was given negative performance evaluations.

The employee commenced a lawsuit against the employer for failure to timely grant his requested accommodations. Although the court agreed that the medical documentation was insufficient, the court denied summary judgment for the employer and held that it was incumbent upon the employer to promptly communicate the insufficiency to the employee and allow him a reasonable amount of time to attempt to cure it. Further, despite the fact that the employer eventually granted the employee’s accommodation requests, the court held that the employer did not grant the accommodations in a timely fashion and the employee’s insufficient medical documentation was no excuse for the delay because the employer did not inform the employee that the documentation was insufficient. If the employer communicated the insufficiency and the employee subsequently failed to provide proper documentation, the court would have likely dismissed the failure to accommodate claim.

May an employer consult with the employee’s doctor about the medical documentation?

Yes—with the employee’s consent. In its Enforcement Guidance, the EEOC recommends that the employer should consider consulting with the employee’s doctor (with the employee’s consent) if the medical documentation provided by the employee is insufficient. Several courts have suggested that the employee is responsible for the breakdown in the interactive process where the employee refuses to allow the employer to speak with the employee’s doctor, especially in situations where the employer is seeking clarification from the employee’s doctor because previous attempts to accommodate were unsuccessful.  

May an employer require an employee to go to a health care professional of the employer’s (rather than the employee’s) choice when the employee’s medical documentation is insufficient?

Yes; the EEOC’s Enforcement Guidance states that the ADA does not prevent an employer from requiring an employee to go to an appropriate health care professional of the employer’s choice if the employee provides insufficient documentation from his/her treating physician (or other health care professional) to substantiate that s/he has an ADA disability and needs a reasonable accommodation. Any medical examination conducted by the employer’s health care professional must be job-related and consistent with business necessity. This means that the examination must be limited to determining the existence of an ADA disability and the functional limitations that require reasonable accommodation. If an employer requires an employee to go to a health care professional of the employer’s choice, the employer must pay all costs associated with the visit(s).

What happens if there are conflicting medical opinions regarding the safety risk presented by the employee’s disability (i.e., employer’s health care professional believes the employee’s disability will pose a direct threat to the safety of others (and/or the employee) but the employee’s doctor disagrees)?

Some disabilities pose a “direct threat” to the health and safety of individuals in the workplace. Where there is no reasonable accommodation available to negate that threat, an employer may terminate the employee. For example, consider a heavy machinery worker with epilepsy. The worker who operates heavy machinery and who has been suffering from seizures might pose a direct threat to his or someone else’s safety.  If no reasonable accommodation is available (i.e., an open position to which the employee could be reassigned), the employer would not violate the ADA by laying the worker off. 

The EEOC cautions that an employer should be cautious about relying solely on the opinion of its own health care professional that an employee poses a direct threat where that opinion is contradicted by documentation from the employee’s own treating physician, who is knowledgeable about the employee’s medical condition and job functions, and/or other objective evidence. In evaluating conflicting medical information, the EEOC suggests that the employer may find it helpful to consider:

  • the area of expertise of each medical professional who has provided information;

  • the kind of information each person providing documentation has about the job’s essential functions and the work environment in which they are performed;

  • whether a particular opinion is based on speculation or on current, objectively verifiable information about the risks associated with a particular condition; and

  • whether the medical opinion is contradicted by information known to or observed by the employer (i.e., information about the employee’s actual experience in the job in question or in previous similar jobs).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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