As it turns out, having a comprehensive policy for addressing requests for accommodation under the Americans with Disabilities Act (ADA) is only half the battle. As the Equal Employment Opportunity Commission (EEOC) recently made clear, companies trying to comply with the ADA by creating a general framework for addressing accommodation requests may run afoul of the law despite their best intentions.
In a recently released Informal Discussion Letter dated February 25, 2014, EEOC Legal Counsel Peggy R. Mastroianni critiqued several aspects of a sample ADA disability accommodation policy that had been posted on an unnamed state agency’s website. The Letter took issue with the generalities and suggestive options included in the sample ADA forms. Although not an official EEOC opinion, the Letter provides some insight into disability policies and practices the EEOC may find objectionable. Below are some key take-aways:
Remember the cardinal rule: No one-size-fits-all approach
The EEOC reiterates the keystone of all ADA accommodation issues: every accommodation request should be handled on an individualized basis. As such, the EEOC reasons, to say as a matter of company policy that certain accommodations will rarely be reasonable−as was the case in the sample policy at issue−could violate the ADA. This includes making broad pronouncements in policies, like taking “unscheduled leave” or working from home will rarely be considered reasonable accommodations.
As a practical matter, that may well be true as it pertains to a specific employee and their specific circumstances. But putting such statements in an ADA policy could incorrectly give the impression that a company is not willing to comply with the ADA, or lead to a mistake in how the company meets its obligations to engage in an interactive process with an employee. Avoiding generalities or pre-judging accommodation requests will help policies pass muster.
Ask enough to get the information you need, and not more
The Letter strongly criticized the sample “Accommodation Questionnaire,” used to evaluate the accommodation requested by an employee. Although acknowledging that employers may ask certain medical questions as part of the interactive process, the EEOC cautioned that it “does not entitle the employer to obtain any medical information it wants.”
Thus, the Letter warns against boilerplate questions that ask for more information than that which is needed to establish that an employee (1) has a disability and (2) needs a reasonable accommodation. For example, a questionnaire asking employees to describe their “treatment plan in detail” may be overbroad.
Be cautious in suggesting possible accommodations
The Letter opined that a policy and/or any request for accommodation form should be sufficiently broad in terms of the types of accommodations that may be considered; otherwise it could be read to exclude unmentioned accommodations. Or, the form could unnecessarily require employees to respond to inquiries wholly unrelated to their particular accommodation requests. For example, according to the EEOC, asking whether employees require changes to their schedules, but not whether they need modifications for work equipment, could unduly exclude (or suggest the exclusion of) potential accommodations and needlessly require employees to respond to irrelevant questions. The Letter also noted the same issues can be found with questionnaires given to physicians, which may unnecessarily suggest accommodations to the exclusion of others.
To the extent you use a general questionnaire at the outset of the interactive process or provide forms for an employee’s physician to fill out, take care to ensure that employees and physicians are able to communicate the accommodations requested and understand that the company is not excluding any accommodations from consideration.
Don’t worry−you don’t need to tear up your company’s current accommodation policies. However, the Letter offers some key themes and good reminders as you re-evaluate your accommodation policies and procedures, and certainly some food for thought in considering how you respond to employee accommodation requests.
For additional information, please contact the authors, a member of the Absence Management and Accommodations Team, or your Seyfarth attorney.