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EEOC Criticizes Sample ADA Policy, Form and Questionnaire

By Allen Smith  5/1/2014
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Sample forms aren’t infallible.

A sample Americans with Disabilities Act (ADA) disability accommodation policy, request for accommodation form and health care provider questionnaire that were posted on the website of an unnamed state agency had many noncompliant provisions, according to an Equal Employment Opportunity Commission (EEOC) informal discussion letter posted to the agency website.

Creating an ADA form is difficult, the letter noted, stating, “The wide-ranging nature of reasonable accommodations undermines any attempt to draft a comprehensive form that asks all the right questions.”

Prohibited Policy Language

Peggy Mastroianni, EEOC legal counsel and the author of the letter posted April 22, 2014, took issue with a sample policy stating that an employer is not required to permit “unscheduled (or erratic, unpredictable, intermittent) or excessive absenteeism or tardiness as a reasonable accommodation.”

Someone with epilepsy may have one or two seizures a year requiring unscheduled leave of one day each time, the letter noted.

The policy also said that telecommuting generally is not a reasonable accommodation except in extraordinary circumstances. The EEOC disagreed, saying the “law is far from settled” on this point and that the agency recognizes telework as a form of reasonable accommodation, though not when it is inappropriate for a job.

The policy also said that if an employee can control an impairment with medication or assistive devices, no reasonable accommodation would normally be needed or reasonable. This statement of the law has been superseded by the ADA Amendments Act (ADAAA). “With one exception, the ADAAA specifically prohibits consideration of the ameliorative effects of mitigating measures when assessing whether an impairment substantially limits a major life activity,” the Department of Labor notes on a website about the ADAAA. The one exception is ordinary eyeglasses or contact lenses.

Faulty Form and Questionnaire

The sample accommodation form states that the employer is committed to accommodating those whose impairments substantially limit the ability to perform the essential duties of the job. But a person does not have to be substantially limited in the major life activity of working to have a disability under the ADA. There are many other major life activities, such as normal cell growth; endocrine, neurological or brain function; standing; lifting; concentrating;  seeing; and hearing.

The letter also “strongly disagree[d]” with routinely asking a person requesting reasonable accommodation to describe “your treatment plan in detail.” That “TMI” likely violates the ADA, which prohibits unnecessary disability-related questions and medical examinations of employees except in limited circumstances, such as in response to a reasonable accommodation request where the need for accommodation is not obvious to identify a covered disability.

A sample health care provider questionnaire asks many of the same questions in the sample request for accommodation form, the letter noted. The suggestion that someone who has been on leave must be fully recovered to return to work is particularly troubling, the letter noted.

“The wide range of disabilities, employers, jobs, workplaces and reasonable accommodations makes it exceedingly difficult to develop a form with questions that almost everyone requesting accommodation would need to answer,” the letter stated. “Additionally, the longer the form, the higher the likelihood that many requestors (or their health care professionals) will be asked questions that violate the ADA and do not serve the employer’s interest in obtaining relevant information to make an informed decision about the request for reasonable accommodation.”

Permitted Questions

So, keep it simple. The letter said a form could ask about:

  • The nature of the requestor’s impairment and its expected duration.
  • The kind of activities, including major bodily functions, that the impairment affects.
  • The way in which the activities are affected.
  • The use of mitigating measures and the extent to which they eliminate or control the impact of the medical condition.

“Employers should consider the purpose behind each question on a form, i.e., whether the answer will provide information concerning the existence of a disability, the need for a reasonable accommodation, or both,” the letter provided. “Any question that does not address at least one of these issues should be carefully reviewed.”

It concluded that “Employers also may wish to have an appropriate management official handling the request (e.g., an HR director) review the form before giving it to a particular applicant or employee to determine if certain questions should be eliminated as irrelevant to the particular request and/or whether other questions should be asked.”

The letter is an informal discussion in response to an inquiry from the public and does not constitute an official opinion of the commission. The letter says the sample policy is no longer available on the state agency’s website.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.


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