Bloomberg Law
Oct. 22, 2021, 8:00 AM

Employers Have the Power to Make Workplaces More Accessible

Kat Macfarlane
Kat Macfarlane
Southern University Law Center

October is National Disability Employment Awareness Month, a time to acknowledge the workplace contributions made by employees with disabilities. It is also a time to recognize that reasonable accommodations are so difficult to obtain that the U.S. workplace remains inaccessible to people with disabilities.

Reasonable accommodations require medical documentation of disability, and as my Fordham Law Review article “Disability Without Documentation” contends, obtaining sufficient medical documentation is time-consuming, costly, and humiliating, as well as legally suspect. Employers have the power to eliminate medical documentation requirements, and in turn, render their workplaces more inclusive.

Medical Documentation Complications

Title I of the Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to disabled employees, giving them the same shot at success as their nondisabled peers. Accommodations might take the form of installing a ramp or permitting an employee to work remotely; many accommodations are inexpensive and easy to implement. But medical documentation requirements complicate what should be simple.

To obtain a doctor’s note verifying their disability, an employee with disabilities must take time off work to attend one or more medical appointments, and potentially submit to an invasive medical exam. If there are any related costs, including whatever a doctor charges to write the note, the employee pays them. And the time off required to attend the appointment may be unpaid.

Medical documentation of disability also disparately impacts employees who already experience health-care inequality. Doctors disbelieve the pain and injury reported by their patients of color, especially women of color, often with catastrophic results. Doctors likely also disbelieve the same patients’ representations that they are disabled, making it more difficult for disabled employees of color to obtain the medical proof required to be accommodated at work.

Suspicion infects each aspect of the medical documentation process, as does relevant case law. The oft-cited 1998 U.S. Court of Appeals for the Sixth Circuit case EEOC v. Prevo’s Family Market Inc. held that employers “need not take [their] employee’s word…that the employee has an illness that may require special accommodation.”

In Prevo’s, an employer refused to believe an employee’s representation that he was HIV positive, and the Sixth Circuit sided with the employer. Some employers require yearly re-certification of disability, supported by medical proof, even when an employee’s disability is chronic or permanent. Other employers require that doctors send notes verifying disability directly from their offices to employers’ human resources divisions, as though disabled employees would otherwise falsify them.

It is time to retire the medical documentation regime. It is not required by the ADA, in fact, when I studied the ADA’s legislative history, I learned that accommodation requests should be granted following an informal interactive process that defers to a disabled employee’s experiences and suggestions.

My research also revealed that judicial endorsement of employers’ medical documentation requirements is the result of an agency error treated as black letter law.

My Personal Experience

My research was inspired by my own experiences. I am disabled due to a childhood rheumatoid arthritis (RA) diagnosis. RA causes joint deterioration, swelling, and pain, but it’s easy to accommodate me at work. With an ergonomic desk setup, I can work long hours in relative comfort.

When I began a new academic job several years ago, I immediately asked for an ergonomic keyboard tray. A mountain of paperwork documented my RA. I was also garnering national attention as a patient rights advocate. Just months before I started the new job, I had shared my experiences with RA at a Congressional Arthritis Caucus briefing and testified about RA in front of the Louisiana state legislature. You could Google me to confirm my diagnosis. Yet like the employee in Prevo’s, I was met with suspicion. I would not receive a keyboard tray until a doctor wrote a new note that endorsed my keyboard tray request.

I panicked. My new job was in a small, rural town. The closest rheumatologist was two hours away. How long would it take to get an appointment with a new doctor? How much time would I spend working in pain? Desperate, I convinced an out-of-state rheumatologist who had once treated me to put the required note on her letterhead. I told her what to write.

It should not be this difficult to obtain a reasonable accommodation. An employee who says “I’m disabled” should be believed. Disability is a personal experience that medical records and doctors’ notes cannot capture. A person with disabilities is best-suited to describe what they need to succeed at work, not a doctor who has never entered their workplace.

Concerns that disability will be overclaimed perpetuate ableist stereotypes about people with disabilities, what Syracuse University College of Law Professor Doron Dorfman refers to as “Fear of the Disability Con.” People with disabilities do not exaggerate; rather, disability is underclaimed, and the ADA, underenforced. But if some documentation is needed, make it minimal. For example, an employee with an asthma medication prescription should be able to submit their prescription records to confirm their asthma diagnosis. No doctor need be involved.

Employers would benefit from a streamlined reasonable accommodations process too. Employees will spend the time that would otherwise be wasted chasing down disability verification being productive employees. Employers will have less paperwork to collect and review.

Employers who created medical documentation requirements can just as easily eliminate them, ensuring that employees with disabilities have a much easier path to securing the reasonable accommodations the law guarantees them. Employers can lead the way to actual equal employment opportunity.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Kat Macfarlane is an associate professor of law at Southern University Law Center in Baton Rouge, La., and chair of the Association of American Law Schools Section on Disability Law.