"I Have a Note from My Doctor": Engaging with Employees' Medical Providers on ADA Accommodation & Fitness for Duty Issues

parsonsbehle.com
May 14, 2024 | The Grand America Hotel – Salt Lake City
“I Have a Note From My Doctor”: Engaging
with Employees’ Medical Providers on ADA
Accommodation & Fitness for Duty Issues
J. Kevin West

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This presentation is based on available information as of May 14,
2024, but everyone must understand that the information provided is
not a substitute for legal advice. This presentation is not intended and
will not serve as a substitute for legal counsel on these issues.
Legal Disclaimer

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Common Scenario
 Your employee presents a note from his/her doctor
(or chiropractor, therapist, etc.).
o The note states that the employee has an ailment and/or
work restriction.
o These notes are often vague or request onerous
restrictions.
o Sometimes the note is unsolicited; sometimes the
employer requested it.
 As the employer, you believe that you must take
the note at face value. No questions asked.
o Today’s presentation dispels this myth.

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The signing physician is a
psychiatrist and a relative
of the patient.

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“Due to anxiety and panic
attacks, patient finds that
mask causes claustrophobia
and panic attacks. Please
allow patient to avoid use of
mask.”
(Written by the patient’s
chiropractor.)

Primer on Title I of the Americans
with Disabilities Act (ADA)

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Title I of the ADA
 Title I of the ADA prohibits employers with 15 or
more employees from discriminating against a
qualified employee/applicant with a disability.
o Disability: a disability within the meaning of the ADA
exists where an individual…
… has a physical or mental impairment that substantially
limits one or more major life activities,
… has a record of such impairment, or
… is regarded as having such a physical or mental
impairment.
 Title I requires employers to provide reasonable
accommodations for qualified
applicants/employees with disabilities unless
doing so would cause an undue hardship.

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Title I of the ADA (cont.)
 Qualified applicant/employee: The individual satisfies the
requisite skill, experience, education and other job-related
requirements of the job and, with or without reasonable
accommodation, can perform the essential functions of such
position.
 Essential Functions: The fundamental job duties of the
employment position.
o Duties are fundamental when they are the reason the job exists, there are
limited employees that the duties can be distributed to, or the duties are for
a highly-specialized position.

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 Reasonable accommodation: Modifications or adjustments that
enable qualified employees/applicants to (1) be considered for the
job, (2) perform the essential functions of the job, or (3) enjoy the
benefits/privileges of the job.
 Undue hardship: Significant difficulty or expense incurred by
employer.
o Relevant factors include the nature and net costs of accommodations,
financial resources of facilities, effect on expenses and resources, impact
on operations, and impact on the employer’s ability to conduct business or
for other workers to perform duties.

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 Reasonable accommodation often requires an “interactive process.”
o Interactive Process: an informal process where employer and employee
identify the limitations from the disability and potential reasonable
accommodations that could overcome the limitations.
o An employer cannot require the employee to accept an accommodation that
is neither requested nor needed.
o An employer does not have to make the accommodation requested by
employee if there are other viable alternatives.

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 The ADA analysis also applies to
pregnancy-related limitations.
o In December 2022, President Biden signed
into law the Pregnant Workers Fairness Act
(PWFA). The PWFA went into force June
27, 2023.
o The PWFA requires employers to provide
reasonable accommodations to a worker’s
known limitations related to pregnancy,
childbirth, or related medical conditions,
unless the accommodation will cause the
employer an undue hardship.

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 Final point: The duty to accommodate
is triggered only if the employee’s
disability is known to the employer.
 An employer is not expected to be a
mind reader.
o Employees with nonobvious disabilities
bear the obligation of initiating the
interactive process by disclosing their
disability and need for accommodation.
o Examples of nonobvious disabilities:
diabetes, depression, ADHD.

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 Sometimes, the disability and need for
accommodation are obvious (visible).
o Where the employee’s disability and need
for accommodation are obvious, the
employer is obligated to initiate the
interactive process.
o Examples of obvious/visible disabilities:
wheelchair, prosthetic limbs, cochlear
implants.

Obtaining Necessary Information to
Provide an Accommodation

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Guidelines for Obtaining Disability Documentation
 An employer has the right to request “reasonable” documentation
regarding an employee’s disability.
o “Reasonable” documentation: Documents that show (1) the employee
has a disability, and (2) the employee needs a reasonable accommodation
for the disability.
 An employer cannot ask for documentation if (1) the disability and
need for accommodation are obvious, or (2) the employee has
already provided sufficient information to substantiate the disability
and need for accommodation.

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Guidelines for Obtaining Disability Documentation (cont.)
 When needed, a doctor’s note should come
from the appropriate healthcare
professional and should address (1) the
disability and (2) the functional limitations
caused by the disability.
o Appropriate healthcare professional:
Someone who has expertise in the condition at
issue and direct knowledge of the employee’s
impairment and its functional limitations.

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 To obtain information about an employee’s disability, the employer
may take one or more of the following steps:
(1) Engage in an informal discussion with the employee regarding his/her
disability and its functional limitations.
(2) Obtain “reasonable” documentation from the employee’s healthcare
provider regarding the employee’s disability and its functional limitations.
(3) Engage an employer-chosen healthcare provider to evaluate the
employee’s disability and its functional limitations.

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 Again, an employer may not request
medical documentation if…
o The disability and need for accommodation
are obvious, or
o The employee has already provided sufficient
information to substantiate his/her disability
and need for accommodation.

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Step 1: Informal Discussion
 The employer should meet with the employee to
discuss the nature of the employee’s disability and
its functional limitations.
o This should be the first step in any interactive process.
 The employer should limit the inquiry to the
disability for which the employee is seeking an accommodation.
o The employer should make clear why it is requesting this information: to verify the
existence of a disability within the meaning of the ADA and to verify the need for a
reasonable accommodation.
o The employer should not ask about the employee’s medical history that is
unrelated to determining the existence of the disability and need for
accommodation at issue.

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Step 2: Requesting Information from the
Employee’s Doctor
 The employer can ask the employee to sign a limited release allowing
employer to submit a list of specific questions to the employee’s
healthcare provider regarding this disability and need for accommodation
at issue.
o The employer can request that the documentation come from an appropriate
healthcare provider (e.g., a chiropractor’s note regarding the employee’s depression
is not appropriate).
 The employer cannot ask for documentation that is unrelated to
determining the existence of a disability and the need for accommodation.
o In most situations, the employer cannot request the employee’s complete medical
records because they are likely to contain information unrelated to the disability and
need for accommodation at issue.

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Step 3: Sending the Employee to an Employer-
Chosen Healthcare Professional
 The employer can require the employee to go to an appropriate
health professional of the employer’s choice.
o The employer should first explain why the provided documentation is
insufficient and allow the employee an opportunity to provide missing
information in a timely manner.
o The examination must be limited to determining the existence of an ADA
disability and the functional limitations that require reasonable
accommodation.

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Step 3: Sending the Employee to an Employer-
Chosen Healthcare Professional (cont.)
 If an employer requires an employee
to go to a health professional of the
employer's choice, the employer must
pay all costs associated with the
visit(s).
 This step is only appropriate if the
employee-provided documentation is
insufficient to clearly explain the
employee’s disability and need for
accommodation.

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Case Study #1: Disclosing Therapy
 Jane Doe was employed as an assistant and later as a technician for a
healthcare provider.
 Over the course of six years, Jane frequently clashed with her coworkers and
providers—sometimes in front of patients.
o In the course of her employment, Jane was transferred to work with a different provider on
five occasions.
o Each of her supervising providers documented her continued pattern of unprofessional
behavior.
 One day, Jane disclosed to a supervisor that she had been seeing a therapist
to work on her professional and personal interactions.
o Jane admitted she had not always been in control of her emotions.

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Case Study #1: Disclosing Therapy (cont.)
 Not long thereafter, Jane experienced a loss in her family and had to care for
her grandmother.
o Jane disclosed this to her supervisor, saying she was feeling “burnt out” and “needed a
break.”
o Jane also disclosed that she was feeling suicidal. Her supervisor suggested that Jane
use her PTO.
 After a verbal confrontation with a coworker, Jane’s supervising provider
informed HR that he could no longer have Jane on his team.
o HR reassigned Jane to another provider, warning that her behavior needed to improve,
or she would be terminated.
 Six days later, a patient emailed the clinic with a detailed complaint regarding
Jane’s rude and unprofessional behavior during his exam.
o Jane was terminated the next day.

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 Jane filed a complaint with the Idaho Human Rights Commission (IHRC),
alleging that her termination constituted disability discrimination.
 In her IHRC complaint, Jane made the following allegations:
o She is disabled. She has depression, PTSD, and anxiety.
o She disclosed her “mental health struggles” to supervisors but they
criticized her rather than engage with her.
o Her unprofessional behavior followed her therapist’s
recommendations: She was “setting healthier boundaries” which
included “not allowing [employer] to take advantage of [her] or treat
[her] poorly.”
o She was demoted and ultimately terminated on the pretense that
she was not getting along with coworkers, “but [she] believe[d] it
was because [she] had finally started setting boundaries for [her]
mental health.”

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 IHRC reviewed Jane Doe’s complaint, finding no probable cause to believe
unlawful discrimination occurred.
o Jane did not show that the employer failed to accommodate her
alleged disabilities.
• Jane did not submit evidence to establish that she has a disability,
that she informed her employer of her disability, or that she
requested an accommodation.
• The evidence indicates that Jane’s employer was unaware of any
disabilities Jane may have had.

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 (IHRC findings cont.)
o Jane failed to show that her demotions and discharge were due
to her alleged disability.
• Again, Jane failed to show that she has a disability.
• Jane did not submit evidence to refute employer’s claim that her
performance was unsatisfactory.
• “Consequently, [employer’s] actions did not give rise to an inference
of disability discrimination. Rather, [employer] gave [Jane] numerous
opportunities to correct her performance before ultimately
transferring her and then discharging her; therefore, [Jane] cannot
prevail on this charge.”

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Takeaways from Case Study #1
 An employee’s mere disclosure of receiving healthcare treatment is generally
not enough to put the employer on notice that the employee has a disability
and needs accommodation.
 Documentation of disciplinary action can rebut a false charge of disability
discrimination.
 An employee’s disclosure of “burnout” and even suicidal ideation does not
automatically put an employer on notice of a disability or need for
accommodation.
o As a best practice, such disclosures should obviously be addressed in some manner.
o But the employer’s obligation to engage in the ADA interactive process is not triggered
until the employee establishes that the problems are linked to a disability for which the
employee is seeking accommodation.

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Takeaways from Case Study #1 (cont.)
 Keep thorough records of employee
issues and how they were addressed.
o In this case study, employer records
provided a thorough timeline that showed
how Jane received clear and direct
feedback and was plainly notified that her
behavior was unacceptable and would
lead to her termination.
o The employer’s file on Jane did not show
any medical evidence of a disability.

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Case Study #2: Masking
 John Doe was employed as a cashier and food
prepper in a fast-food establishment.
 One day, John wore a mask to work. (This was ~5
years before the COVID-19 pandemic.)
o Supervisors were concerned that the mask would
cause customers to think John was ill.
o When a supervisor asked John why he was
masking, John said he didn’t like the smell of the
restaurant.
 Without further inquiry, the supervisor asked John to get a doctor’s note.
o John obtained a doctor’s note (pictured).
o John then commented that he had a dust allergy and did not want to get coworkers/customers
sick.
o John reiterated that he didn’t like the smell of the restaurant.

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Case Study #2: Masking (cont.)
 The employer reached out to us for legal
counsel. We gave the following advice:
o A minor allergy to dust or pollen is not a disability
under the ADA.
• Furthermore, there was no litter or dust in the
restaurant.
• John’s issue was clearly with the smell of the
restaurant—not allergies.
o The supervisor’s request for a doctor’s note was
premature.
• It needlessly escalated the matter into a medical
situation.

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Case Study #2: Masking (cont.)
 How it should have been handled:
o John should have been informed this is how restaurants smell; if he’s not happy with that,
he should reconsider his employment.
o The supervisor should have explained that the mask was not allowed because of its
adverse impact on customers.
• (Again, this was pre-pandemic.)
o Requesting a doctor’s note should only have occurred if John had disclosed a true
disability related to the mask.

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 Don’t jump the gun: Employers should not assume a disability where one may
not exist.
o If an employee gives a non-medical reason for his/her conduct, don’t turn it into a medical
situation.
o Unless the disability and need for accommodation are obvious, the employee bears the
obligation to initiate the interactive process.
 A doctor’s note does not magically create a disability or a need for
accommodation.
o This is especially true if the letter is vague or lacks references to a medical condition.

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Takeaways from Case Study #2 (cont.)
 Could John have been “regarded as” having a disability?
o No. The employer did not treat John as having a disability or take adverse action against
John based on the belief that he had a disability.
 The ADA limits the scope of “regarded as” by excluding impairments that are
“transitory and minor.”
o “Transitory” impairments are conditions that last 6 months or less.
o “Minor” impairments are not defined but are commonly evaluated by the severity of the
impairment, symptoms, and required treatment.
o The “minor and transitory” exception was added to the ADA to prevent the “obligation to
accommodate people with stomach aches, a common cold, mild seasonal allergies, or
even a hangnail.”

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Case Study #3: Christner v. American Eagle
Airlines, Inc. (N.D. Illinois 2003)
 John Christner worked as ground support director for American Eagle Airlines, Inc. (“AEA”).
 On April 9, 1997, an AEA mechanic returned from medical leave after suffering head injury at
work.
o Christner, the mechanic’s direct supervisor, did not believe the
mechanic had sufficient medical verification to justify leave.
o Christner mocked the mechanic, calling him pathetic.
o Christner slammed his own head against a filing cabinet, telling
the mechanic that he (Christner) was “not running to medical.”
o Christner denied making these statements or mocking the
mechanic, but admitted to slamming his head and saying,
“See? No bumps, no bruises, and I’m not taking two weeks off.”
 Christner was demoted and given 60 days to find a non-
management position in accordance with AEA procedure.

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Airlines, Inc. (cont.)
 “But here is the twist that forms the basis of Christner’s claim in the suit.”
o In 1996 (~1 year before the mechanic incident), Christner suffered an on-the-job injury.
o At the time, AEA knew of the injury, but not its severity.
o Christner had surgery on both arms, missed four days of work, and never requested
medical leave.
 In March 1998 (~11 months after the mechanic incident), Christner’s doctor
cleared him to return to light duty.
o At that point, Christner provided the doctor’s documentation to AEA.

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 AEA allowed Christner to go on two-year medical leave if he did not find a new
position within the normal 60-day period and gave him access to AEA
computers to search for a new position.
o Christner never used the AEA computer and never applied for a new position in his 60-day
period or two-year medical leave period.
o In July 1998, Christner filed a complaint with the Equal Employment Opportunity
Commission (EEOC), complaining of his demotion.
o After failing to land another position, AEA terminated Christner in July 1999 at the
conclusion of medical leave.

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 After receiving a “right to sue” letter from the
EEOC, Christner sued AEA, claiming:
o AEA refused to accommodate his disability when his
doctor cleared him to return to light duty in March 1998.
o AEA retaliated against him for filing a complaint with
EEOC by refusing to restore his ground support
supervisor position. (The demotion was a year before
the EEOC complaint.)
 The Court ruled in favor of AEA on both counts
and dismissed Christner’s suit.

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 Christner’s “failure to accommodate” claim fails.
o Christner’s deposition testimony about matters like “not being able to adjust the collar of his
shirt” was “a far cry from not being able to perform he variety of manual tasks necessary to
care for himself on a daily basis.”
o Documentation from Christner’s doctor was “vague” and did not establish that Christner
was disabled within the meaning of the ADA.
o “But there is an even more fundamental flaw in Christner's failure to accommodate claim:
Christner never requested a reasonable accommodation.”
 “Christner's retaliation claim is frivolous.”
o American Eagle's continued refusal to reverse Christner’s demotion following his EEOC
complaint “is not a fresh act of discrimination that can support a retaliation claim.”
o “Christner admitted as much in his deposition, testifying that he was unaware of any
actions by American Eagle against him because of his ‘opposition to discrimination.’”

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 Employers are not liable for an employee’s failure to either disclose a
nonobvious disability or request a reasonable accommodation.
 Unless an employee’s disability and need for accommodation are obvious,
an employer is not obligated to proactively engage in the interactive process.
o Under the current version of the ADA, the court might have found that Christner had a
disability.
• Christner’s case was decided before the 2008 ADA amendments, which broadened the
definition of disability.
o It is unclear how obvious Christner’s alleged disability was, but Christner probably would
have still lost his case because he failed to seek an accommodation.

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Case Study #4: Elbow Restrictions
 Pam was employed by Dunder Mifflin Eye Care (DMEC),
an optometry center with multiple locations and providers
across Scranton, PA.
o Pam duties included sorting and filing patient charts,
preparing eye exam equipment, and taking calls at the
front desk
 One day, Pam injured her left elbow while rearranging
patient charts in the filing room.
o Pam filled out an incident report and provided written
updates, noting that her left elbow was sore to the touch
and kept her up at night.
o Pam later presented a doctor’s note to her supervisor, Jan.

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Case Study #4: Elbow Restrictions (cont.)
 Pam’s supervisor, Jan, drafted a schedule for
Pam based on Pam’s left-elbow disability and
supporting doctor’s note.
 Pam then disclosed an alleged disability with
her right arm.
o Pam said she could not use her right arm to carry
anything heavier than 1 lb. because of an injury 25
years prior that resulted in a permeant disability.
o Jan asked Pam to provide documentation
regarding Pam’s right arm and explained that such
documents were necessary before right-arm
accommodations could be made.

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 One month later, Pam presented Jan with instructions from her physical
therapist: Pam should use a hands-free headset at all times when operating
phones.
o DMEC installed a hands-free headset on Pam’s work phone.
o DMEC encouraged Pam to ask her coworkers for help to the extent that Pam’s unverified
right-arm disability inhibited her ability to put on the headset.

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 Pam then had a string of workplace issues.
o Pam was caught using her personal cell phone behind her desk—despite her arm injuries
—in violation of DMEC’s phone policy.
o One of the providers, Dr. Schrute, complained that Pam was improperly preparing patients’
eye tests. Dr. Schrute requested that Pam be removed from his team.
• Based on Pam’s work restrictions and Dr. Schrute’s team needs, DMEC could not find an
accommodation-appropriate job for Pam on Thursdays (when Dr. Schrute worked).
• Pam was removed from the Thursday schedule, and Pam’s supervisor suggested that she file a
worker’s comp. claim if she was concerned with her working hours.
o Pam filed a worker’s comp. claim for her reduced hours but failed to provide information
requested by the claim manager.

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 DM Eye Center then learned that Pam had not
been keeping up on (or even checking) patient
voicemails.
o There was a backlog of over 40 voicemails going as
far back as 3 weeks.
 Pam said she did not need to check voicemails,
citing a text message from Jan and an updated
doctor’s note.
o Jan’s text made no mention of voicemails, and Pam had not provided an updated
doctor’s note.
o When Jan finally presented the updated doctor’s note, it lacked any restrictions related
to voicemails.
o Jan also conceded that she failed to even alert coworkers or supervisors about the
backlog of voicemails.

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 During the same meeting regarding voicemails, Pam requested a new incident
report form, alleging that she had recently injured her right elbow.
o Pam said her right elbow “snapped” while she was writing a patient chart.
 Jan instructed Pam to schedule an appointment with her doctor and have the
right-elbow issue evaluated.
o At Jan’s direction, Pam was not allowed to return work until she provided a report from her
doctor regarding her right elbow.
o Pam never provided a doctor’s note and did not answer calls from Jan.
o Pam was terminated from her position with DMEC one week later.

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 An employer may request that an employee provide documentation for a
nonobvious disability, even if the employee already has a documented
disability and accommodation for a similar—but unrelated—disability.
o An employer does not have to take an employee’s word about disability X merely
because employee has already demonstrated that they have disability Y.
 Accommodations should be in writing and include specific details about duty
modifications.
 If an employee is not able or willing to fulfill the essential job requirements
(with or without accommodation), the employer is not required to retain the
employee.
o A workplace accommodation is not a carte blanche that excuses an employee from
being a collaborative member of the work team.

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Recap
 Unless a disability and need for accommodation are obvious, the employee
bears the obligation to initiate the interactive process.
o Employers are not expected to be mind readers.
 As part of interactive process, an employer should first engage with the
employee informally and ask them to provide reasonable
documentation/information regarding the disability and its limitations.
o A doctor’s note or an employee’s claim of personal hardships are not necessarily notice
of a disability and need for accommodation.
o An ADA accommodation for one disability does not automatically excuse an employee
from establishing a disability and need for accommodation for another disability (e.g.,
Case Study #4: separate issues with each arm)

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Recap (cont.)
 The employer can only seek reasonable documentation if (1) the disability and
need for accommodation are not obvious, or (2) the information provided by the
employee is insufficient to establish the disability and need for accommodation.
 The employer can ask the employee provide reasonable documentation from
the appropriate healthcare professional.
o The employer can ask employee to sign release for documents that are necessary to
establish the disability and need for accommodation.
o Requesting the employee’s complete medical history is generally not permissible.
 If documents are still insufficient, the employer can send the employee to the
appropriate provider of the employer’s choosing and at employer’s expense.

Thank You
You can scan the QR code or visit
parsonsbehle.com/emp-seminar
to download a PDF handbook of
today’s seminar.

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Thank You
 J. Kevin West
kwest@parsonsbehle.com
208.562.4908

"I Have a Note from My Doctor": Engaging with Employees' Medical Providers on ADA Accommodation & Fitness for Duty Issues

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