JAN has been a great partner to HR That Works Members for years. They just re-launched their Blogsite. You are encouraged to share your accommodation story. To learn more go to http://askjan.org/blog/.

Upon receiving a request for accommodation under the ADA, when the disability and/or need for accommodation are not obvious, an employer is permitted to ask for medical documentation from an employee. The purpose for requesting this documentation is to assist the employer in determining if the individual has an ADA disability by learning about the nature of the disability and the individual’s functional limitations. Of course, there is no requirement under the ADA to obtain medical documentation to grant an accommodation and often it is unnecessary. Employers are encouraged to focus less on who has a disability and more on making accommodations that are reasonable and effective.

Medical documentation often establishes the need for long-term accommodations for an employee who has a disability of an extended or lifelong duration. An example would be an employee with diabetes who needs a flexible work schedule to receive weekly dialysis. The accommodation of a flexible schedule could be needed indefinitely over the term of the individual’s employment and it is likely that the individual’s medical condition and/or need for accommodation will not change over time. Employers sometimes ask JAN Consultants if updated medical documentation can be requested annually from employees who are receiving long-term accommodations for ADA established disabilities. The stated purpose for such a request is to “recertify” an employee’s need/qualification for an accommodation. The following questions address this issue.

• Can an employer annually request medical documentation from employees who are receiving long-term accommodations?

Requesting annual medical documentation would not be prudent under the ADA. Where reasonable medical documentation that establishes an ADA disability was provided by an employee for the purpose of obtaining an accommodation, an employer will not have cause to request updated information on an annual basis. According to the Equal Employment Opportunity Commission (EEOC), an employer cannot ask for documentation when the disability and the need for reasonable accommodation are obvious, or the individual has already provided the employer with sufficient information to substantiate an ADA disability.

• What if there is a change in limitations and/or accommodations related to the same ADA disability?

If the medical information provided previously sufficiently established the existence of a long-term impairment that substantially limits a major life activity, then EEOC says that an employer cannot ask for documentation that the person has an ADA disability. However, the employer may ask for reasonable documentation that addresses the specific need for the accommodation (if the need is not obvious).

• Is an individual with a disability who is receiving a reasonable accommodation entitled to receive it forever?

While many accommodations are provided long-term, the EEOC has informally stated that an individual with a disability receiving a reasonable accommodation is not necessarily entitled to receive it forever. There are several reasons why an employer may stop providing a specific accommodation, or change the type of reasonable accommodation being provided. For example, a person’s disability may no longer necessitate a reasonable accommodation, or the accommodation might become an undue hardship on the employer. It’s important for the employer and employee to discuss any changes in accommodations. If an accommodation becomes an undue hardship, it may be possible to identify an alternative solution. JAN Consultants can help identify alternative accommodation solutions. Visit AskJAN.org for more information.

To learn more about requesting medical documentation from employees under the ADA, see questions 6 – 8 in EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA. Also, JAN offers many resources related to requesting medical documentation, determining disability, and providing and maintaining job accommodations. Examples include:

• Five Practical Tips for Providing and Maintaining Effective Job Accommodations
• How to Determine Whether a Person Has a Disability under the Americans with Disabilities Act (ADA) (Updated)
• Medical Inquiry in Response to an Accommodation Request

- Tracie DeFreitas Saab, M.S., Lead Consultant for the Job Accommodation Network (JAN)

Return to Work (RTW) and Stay at Work (SAW) programs are part of a business’ strategy to retain valued employees and to enhance the productivity of its workforce. “The goal of a return-to-work program, sometimes called a transitional duty program, is to make job changes or provide job accommodations that return individuals to work who are absent for workers’ compensation or disability-related reasons.”[1]

As with workplace accommodation programs, a RTW program should have clear written policies articulating each party’s responsibilities. Accurate job descriptions including the physical demands of particular essential functions should also be developed. This helps everyone in the process (e.g., doctors, rehabilitation staff, and accommodation specialists) understand the job requirements. A good understanding of the job demands and the employee’s limitations and abilities is the starting point for determining if effective job accommodations will enable the employee to return to or stay at work while still recovering from injury. Effective job accommodations insure that the employee returns to work as soon as possible without risk to the employee or employer.

Of the employers who called JAN for technical assistance, most (82%) were doing so to retain a current employee.[2] Thus, most of JAN’s publications contain accommodation solutions that could be generalized to a RTW or SAW situation. JAN also offers a number of examples specific to RTW.

For instance:

Situation – A warehouse employee was transitioning back to work with lifting restrictions after being injured by falling boxes of product.

Accommodation Solutions:

• Provide overhead structure for lifting devices;
• Place frequently used tools and supplies at or near waist height;
• Provide low task chairs, stand/lean stools, and anti-fatigue mats;
• Provide compact lifting devices to push and pull supplies and tools from storage;
• Make wheelchairs, scooters, industrial tricycles, or golf carts available; and
• Provide aerial lifts, rolling safety ladders, and work platforms.

The full publication, Fact Sheet Series: Job Accommodations for Return to Work is available for download. If you need additional guidance in identifying a device, or need information on where to buy the device, please call one of JAN’s Consultants.

Below are resources to learn more about developing your company’s RTW or SAW program:

• U.S. Department of Labor’s Office of Disability Employment Policy Return to Work Toolkit
• Disability Management Employer Coalition (DMEC)
• Return to Work Matters
• Society for Human Resource Management (SHRM) Disability Employment Resource Page (available to nonmembers and members alike)

- Louis E. Orslene, MPIA, MSW, Co-Director, The Job Accommodation Network (www.askjan.org)

One of the most significant changes the ADA Amendments Act made to the definition of disability is that now, when trying to figure out how limited a person is by his impairment, we ignore the beneficial effects of any mitigating measures he uses. This change has been very confusing to some, but once you figure it out, it really is not that difficult. All it means is that we now have to determine what effects an impairment would have if the person did not use any mitigating measures.

And just what are mitigating measures? They are things a person uses to treat his impairment or overcome any limitations the impairment causes. Examples include things like wheelchairs, hearing aids, medication, prosthetic limbs, and therapy.

How do we know how limited a person would be without his mitigating measures? First we need to know if he uses mitigating measures. In some cases it will be obvious – we will see his wheelchair or hearing aid or prosthetic limb. In other cases we may need to ask him or get medical documentation when appropriate.

Next we need to find out what would happen if the person did not use the mitigating measure. Again, in some cases it will be obvious. For example, if a person with a prosthetic leg does not use his prosthesis, he will be substantially limited in walking. If it is not obvious, there are various ways to figure out how limited the person would be without the use of a mitigating measure, such as:

• Find out what limitations a person experienced prior to using a mitigating measure,
• Find out the expected course of a particular disorder absent mitigating measures, or
• Look at readily available and reliable information of other types.

You may be wondering when this issue will arise. It usually comes up in the workplace when an applicant or employee requests an accommodation and the employer needs to determine whether that person meets the definition of disability and is therefore entitled to the accommodation. One important thing to remember is that ignoring the beneficial effects of mitigating measures only applies to determining whether someone has a disability. When looking at whether a person needs a reasonable accommodation we do the opposite – we will look at what limitations he has after he uses the mitigating measure. That is why the best approach is to make the disability determination a separate step from the reasonable accommodation process.

So you see, the ADA Amendments Act rule about mitigating measures is not that hard to apply. All it usually takes is some common sense. For more information, see JAN’s Accommodation and Compliance Series: The ADA Amendments Act of 2008 and ADA Library.

- Linda Carter Batiste, J.D., Principal Consultant, The Job Accommodation Network (www.askjan.org)

The latest JAN E-News is now available at: http://AskJAN.org/enews/2011/Enews-V9-I1.htm

E-News topics include:

1. Multimedia Accessibility & the Changing Workplace
2. Going Green in the Workplace Series: Ideas for Improving More Than Just the Environment
3. Going Green in the Workplace Series: Advantages of Telework Turn Employers Green
4. Going Green in the Workplace Series: Going Green the Photosensitive Way
5. Material Lifting Devices, Part 1 of a Continuing Series
6. Phobias in the Workplace 
7. The Job Accommodation Process for Individuals with Speech and Language Impairments: An Introduction for Service Providers
8. JAN Releases New Resources