From the desk of Tracie DeFreitas, M.S., CLMS, Lead Consultant — ADA Specialist
Requesting new or updated medical documentation to prove disability each time an employer wants to recertify an employee’s need for accommodation can violate the disability-related inquiry rules under the ADA. JAN Consultants frequently receive questions from employers about the appropriateness of requesting medical information in order to determine if accommodations are still needed. Accommodations can be needed for temporary or long-term durations, as-needed, and even indefinitely, but often the original medical information/request for accommodation will not indicate an anticipated duration. As a result, some employers have a practice of recertifying the continuing need for accommodation, sometimes periodically, but more commonly annually. The practice of recertifying accommodations can leave employers open to some degree of ADA risk if not done appropriately. The following Q & A addresses some of the questions JAN receives on this topic, and offers practical guidance for recertifying accommodations and keeping the disability-related inquiry rules in mind.
Can employers require employees to periodically or annually recertify the ongoing need for accommodation, and request updated/new medical information as part of the process?
Only under limited circumstances. Remember, under the ADA, employers may not ask disability-related questions of employees unless those questions meet the standard of being “job-related and consistent with business necessity.” When reasonable and sufficient medical documentation that establishes an ADA-qualifying disability was previously provided by an employee for the purpose of receiving accommodation, an employer will not likely have a job-related reason to request updated/new medical information on an annual or periodic basis simply because the employer wants to do this as a practice. For example, if an employee who has a long-term or permanent medical impairment has been accommodated for some time and there is no change in either the medical impairment, limitations, need for accommodation, ability to perform job duties, or the employer’s ability to accommodate, then asking questions about the continuing need for accommodation, or requesting updated/new medical documentation, will not meet the job-related and consistent with business necessity standard.
According to the Equal Employment Opportunity Commission (EEOC), a medical inquiry or examination is job-related and consistent with business necessity when:
- an employer has a reasonable belief, based on objective evidence, that an employee's ability to perform essential job functions will be impaired by a medical condition, or
- an employer has a reasonable belief, based on objective evidence, that an employee will pose a direct threat due to a medical condition, or
- an employee asks for a reasonable accommodation and the employee's disability or need for accommodation is not known or obvious, or
- required in positions that affect public safety, such as police and fire fighters.
For additional information, see question 5 in the EEOC enforcement guidance on Disability-Related Inquiries and Medical Examinations of Employees.
When can employees be asked to provide updated disability-related information about their ongoing need for accommodation?
There can be individual circumstances when requesting information about the ongoing need for accommodation may meet the job-related and consistent with business necessity standard, on a case-by-case basis. To avoid violating the ADA’s disability-related inquiry rules, employers should be aware of what is already known about the employee’s medical impairment and need for accommodation before engaging in the process of requesting updated medical information. According to the EEOC, employers cannot ask for medical documentation when the disability and the need for reasonable accommodation are known or obvious, or the individual has already provided the employer with sufficient information to substantiate an ADA disability.
When an employer does not have sufficient disability-related information, or there is a significant change that will impact the provision of reasonable accommodation, then it can be appropriate to request information from employees about their ongoing need for accommodation. The following situations are examples of when it may be appropriate to request disability-related information to recertify the ongoing need for accommodation:
- When the original medical documentation/request for accommodation indicates that the employee's medical impairment/limitations/need for accommodation will change (e.g., employee has MS and medical documentation indicates that symptoms, limitations, and need for accommodation may change due to the nature of the medical impairment)
- When no duration for the need for accommodation was provided in the original medical documentation/request for accommodation (e.g., request to modify schedule does not indicate for how many days, weeks, months, etc.)
- When the duration for the need for accommodation was provided in the original medical documentation/request for accommodation but is nearing expiration, and it is apparent/known that the employee still requires accommodation (e.g., employee temporarily accommodated with modified duty but impairment did not heal as expected and individual still has limitations affecting performance of job duties)
- When there is a change in an employee’s medical impairment, limitations, ability to perform job duties/meet standards, or employer’s ability to accommodate, etc. (e.g., employee accommodated with intermittent leave for chronic medical impairment is using substantially more leave than indicated in original medical documentation)
- When accommodations are being monitored for effectiveness and the employee indicates a need for a change in accommodation or that there is a change in medical impairment/limitations (e.g., when checking-in with an employee about equipment that was provided due to low vision, the employee notes that her vision loss has progressed and an alternative accommodation is needed)
Practical guidance: Make smart decisions about asking for the best disability-related information at the appropriate time. Understand what must be known in order to continue providing the accommodation. Do you merely need confirmation that accommodation is still needed for the reason it was originally granted? For example, if the initial request for accommodation did not indicate a duration for the need for accommodation, the employer can request that the employee obtain a note from their healthcare provider that confirms the accommodation is still needed, and for what duration. The employer could ask if the need for accommodation is long-term, permanent, or temporary, and the anticipated duration. Medical inquiries that reach beyond what is needed to confirm the continuing need for accommodation, or that duplicate information that was previously obtained, can violate the ADA (e.g., requesting new information about an employee’s diagnosis when the information is already available to the employer).
When appropriate, can employers simply request confirmation that an accommodation is still needed, without requesting updated medical information?
Yes. Simply put, don’t ask for information that is not needed. Remember, the ADA does not require employers to request medical information to provide reasonable accommodation. Before asking for too much information, consider the impact the information will (or will not) have on effectively continuing the accommodation. It is possible to simply seek confirmation that an accommodation is still needed without requiring any further disability-related details. In many situations, a request for information to confirm the need for accommodation will only need to address whether or not the individual still requires the accommodation due to the medical impairment for which it was originally granted, and for what duration.
When there is a change in an employer’s ability to provide a specific accommodation, is it possible to re-engage in the interactive accommodation process with the employee and request updated medical information?
It makes sense to re-engage in the interactive process when it is determined that a particular accommodation must be discontinued because it is no longer reasonable or poses an undue hardship. Whether or not updated medical information can be requested will depend on the facts of the situation and if the information is necessary to determine, 1) if accommodation is still needed, and 2) if alternative accommodations will be effective based on the employee’s impairment, limitations, and impact on job performance/ability to meet standards.
Practical guidance: If updated medical information will not impact the next steps of the accommodation process, then it probably is not needed. Instead, focus on identifying an alternative reasonable accommodation. You already know what impairment exists, the employee’s limitations, etc. The change is related to the employer’s inability to continue the accommodation. What alternative, effective accommodation solutions exist? In most situations, updated medical information will not be needed, but rather, productive brainstorming will lead to identifying an alternative accommodation solution.
How can employers determine if accommodations are still needed and effective without asking disability-related questions?
The interactive accommodation process offers a path for employers to evaluate the effectiveness and ongoing need for accommodation by monitoring accommodations. As important as it is to explore, choose, and implement accommodations, it is equally as important to ensure that accommodations continue to be effective after implementation. Because changes occur, it can be useful to periodically check on the ongoing effectiveness of accommodations. An effective way to monitor accommodations is to encourage open and ongoing communication. Employees who are receiving accommodations should be encouraged to communicate with the employer when there are changes or problems with an accommodation, and be informed about who to contact for accommodation assistance.
Practical guidance: Have a formal interactive accommodation process that includes monitoring accommodations and assigns responsibility for follow-up. There is no standard process for monitoring accommodations but the process should focus on evaluating the effectiveness of the accommodation, as opposed to obtaining information about the employee’s medical impairment. Remember, disability-related inquiries are restricted until the job-related and consistent with business necessity standard has been met.
It can be useful to follow a checklist or use a form to guide and document the monitoring process, but it can also be practical to simply have an open dialogue with the employee about the effectiveness of accommodation. Discussion can include questions like: Is the accommodation working? Is anything additional or different needed to support you in performing job duties, or meeting standards? Is there any change in your need for accommodation? In some situations, discussion may lead to a need to request updated disability-related information (e.g., employee indicates a change in disability-related limitations), but this will be rare.
JAN offers a sample form that can be used as a guide when monitoring accommodations. The form can be customized to gather information relevant to each unique accommodation situation. For more information, see JAN’s sample form for Monitoring Reasonable Accommodations.