SECOND–GUESSING EMPLOYEE’S DOCTOR

Here’s a common scenario: In the course of the interactive prCrazyDoctor_300x200ocess, while evaluating an employee’s ADA request for accommodation and/or FMLA medical certification, you have reason to doubt the treating physician’s diagnosis, prognosis, or recommendations for intermittent leave and reasonable accommodation. Maybe you think the doctor is “fudging” to help her patient receive more generous leave than what is truly medically necessary. Perhaps the doctor is a friend of the employee. Or maybe you think the doctor is just plain wrong. Whatever leads you to doubt and second guess the treating physician’s certification, simply disregarding it is a dangerous choice.

This issue was recently demonstrated in Spurling v. C& M Fine Pack, Inc., ___ F.3d____, 2014 WL 107968 (7th Cir. Jan. 13, 2014).

Relevant Case Facts: An employee worked the night shift, “began to exhibit a pattern of decreased consciousness and alertness” (legal speak for she fell asleep on the job), and was disciplined accordingly. Following the final written warning for the offense, the employee met with her supervisors and told them her sleep issues were caused by medication her doctor had prescribed; she produced a doctor’s note stating: “[Patient] was recently asked to discontinue medicine related to her passing out—please excuse symptoms [at] work.” The employer correctly surmised this was a request for accommodation under the ADA.

Employer responded by providing the employee with the ADA documentation for her doctor to complete. (Check!) Her doctor timely did so, indicating the employee had a mental or physical disability covered by the ADA; recommending periods of scheduled rest during her shift as an accommodation; and indicating “[additional] medical work up” was in progress. (Check!)

The employer elected not to engage in the interactive process with the employee to discuss reasonable accommodations (Oh, no—trouble ahead!). Instead, the employer terminated her (Trouble indeed!!).

The reason? The HR team did not believe the employee’s doctor. The HR Manager testified the doctor’s notation stating the employee was suffering from a condition covered by the ADA was “insufficient to establish that she had a disability.” Likewise, the Vice President of HR testified: “I don’t believe that a doctor is in a position to make that determination. It is his opinion.” (This is the proverbial kiss of death and nail in the coffin in this case!)

The result? The Seventh Circuit held the employer knew of the plaintiff’s medical condition and request for accommodation before the termination decision had been made and yet took an “aggressive approach” by terminating her before accommodating her, or at least engaging the interactive process. Here’s what the Court said:

  • Rather than collaborate with [the employee] or her doctor to find a reasonable accommodation, [the employer] chose to turn a blind eye and terminate her. It did not seek further clarification from either [the employee] or her doctor and disregarded the medical evaluation altogether. This is hardly engaging with [the employee] to determine if a reasonable accommodation could be made. . . . The evidence suggests that a reasonable accommodation was readily available; [the employee] simply needed further medical testing and prescription to control her narcolepsy. . . . [The employer] properly began the interactive process as envisioned by the ADA, but failed to carry it through.

THE TAKEAWAY:

NEVER ignore or disregard a doctor’s certification and recommendations in an ADA interactive questionnaire, even if you think the doctor’s opinion is absurd, outlandish, rubbish and ludicrous!

Instead, take (and document) these steps:
1. Meet with the employee as a part of the interactive process. Ask the employee specifics on the requested accommodation. In this case, at minimum ask how many rest breaks she anticipating needing per shift; how long each break would last; the anticipated timeline for the additional medical workup mentioned in the certification.

2. Have the employee sign a Medical Authorization so that you contact the treating physician with follow up questions about the disability and accommodations.

3. If it wasn’t already covered on the ADA questionnaire, ask the doctor about the general nature of the mental or physical impairment; whether the employee is limited in a major life activity; how long the impairment has or is expected to last; clarification regarding the recommended rest periods; whether the employee presents a risk of danger to herself or others working while prone to narcolepsy; the timeline for the additional medical workup; the probable duration of the disability and/or recommended accommodations.

4. Still don’t believe the doctor’s diagnosis and recommendations? Can you require a second opinion? Probably not. Unlike the FMLA, the ADA regulations do not explicitly provide for a second opinion process. However, the EEOC stated in its enforcement guidance (Insert link): “The ADA does not prevent an employer from requiring an employee to go to an appropriate health professional of the employer’s choice if the employee initially provides insufficient information to substantiate that s/he has an ADA disability and needs a reasonable accommodation.” The EEOC’s caveat suggests an employer may not send the employee to the employer’s health care professional until the employee is first given the change to bring in documentation from his/her personal health care professional, and only if the employee’s documentation from his or her health care professional is insufficient to document a disability. But once the employee’s doctor provides sufficient information to substantiate the disability and need for reasonable accommodation, it appears the EEOC does not allow for a second opinion, and, instead the employer must accept the opinion of the employee’s physician.

5. Make a decision regarding the requested accommodation(s)—and then communicate it to the employee and document it for the file! In this case, the Court concluded: “The evidence suggests that a reasonable accommodation was readily available; [the employee] simply needed further medical testing and a prescription to control her narcolepsy.” The Court’s statement doesn’t provide guidance as to what exactly the reasonable accommodation would be, e.g., allow rest periods during the period of medical testing and until the narcolepsy was controlled by medication, leave of absence while the medical testing was being conducted, or a reassignment of shift? However, the takeaway is the employer must participate in the interactive process and make a determination regarding the requested accommodation(s)—even if the ultimate determination is the accommodation is not reasonable or creates an undue hardship (a topic for another day).

One Last Thought: This case touches on the related topic of what to do when an employee claims a disability and requests an accommodation for the first time in response to discipline—exactly what happened here. We’ll cover that important issue in an upcoming post!

YES, VIRGINIA, EMPLOYEES STILL NEED TO BE “DISABLED” TO TAKE ADVANTAGE OF THE ADA

  Since the ADA Amendments Act, the EEOC has been instructing employers to “skip over” the analysis of whether an employee is  “disabled” under the ADA (e.g., has a mental or physical impairment substantially limiting a major life activity), and instead go straight to the interactive process and offering accommodations.  Indeed, in crafting and enacting the ADA Amendment Act, Congress specifically intended “the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations [ ] and . . .  that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” 42 U.S.C. § 1201 (note).

In Neely v. PSEG Texas, Limited Partnership, 735 F.3d 242 (5th Cir. 2013), the plaintiff adopted the EEOC’s position and argued the Court erred in submitting a jury question regarding disability—“Was [plaintiff] a qualified individual with a disability?”—as a predicate to a finding of discrimination regarding his termination claim and failure to accommodate claim under the ADA.   Plaintiff suggested under the textual changes to the ADA by the ADA Amendments Act, it is now unnecessary for a plaintiff to prove, and the jury to find, the plaintiff was “disabled” under the ADA.

In what seems an obvious but nonetheless an important and positive clarification for employers, the Fifth Circuit disagreed and held in order for employees to avail themselves of the ADA, they must in fact be “disabled.”  The Fifth Circuit ruled that although the ADA Amendments Act expresses Congress’s intention to broaden the definition and coverage of the term “disability,” it  “in no way eliminated the term from the ADA or the need to prove a disability on a claim of disability discrimination” or a claim of failure to accommodate.  The Court states:

[B]ecause the jury instruction definition of “disability” and “qualified individual” properly conform to the ADAAA (and because the term “disability,” even in its broadest sense, remains to be proved in claims under the ADA), there is no abuse of discretion—or even error—in the use of the terms in the . . . verdict question.

Id. at 246-47.

THE TAKEAWAY:

Employers should still examine whether an employee meets the “disability” definition before engaging in the interactive process and offering accommodations.   Litigators should continue to argue plaintiffs do not meet the definition of “qualified person with a disability,” and thus do not have the protection of the law.