Q&A: Is employee’s self-diagnosis sufficient for accommodation?
Question
We have an employee who has had repeated work issues in the past several months, including not getting tasks done, not always being a team player, and customer service that isn’t up to our standards. He has told his supervisor and HR that he believes he has autism. We have met with him several times to discuss his work performance, developed a performance improvement plan, and have encouraged him to get medical help and a professional diagnosis and treatment plan for the health issues he’s experiencing. While there has been some progress, today he experienced what he described as “a breakdown” and needed to leave work.
We have provided accommodations already to help him focus, including the use of a private office when he needs to concentrate, allowing him to wear headphones to block out sound when noises bother him, and guidance with how to manage tasks better and provide better customer service. Unfortunately, our customers are noticing that his work performance is lacking and there is concern that his current position might not be a good fit for him.
What can we do in this situation?
Answer
An employee’s self-diagnosis of a medical condition can be helpful to both the employee and employer, but it is not dispositive or the final step in the analysis involved in an employee’s reassignment, evaluation and/or disciplinary action up to and including termination. Generally, an employer may require an employee to provide sufficient medical information supporting their need for reasonable accommodation (and/or medical leave) due to a medical condition. How much information you can require will depend on whether the employee is covered by the federal Americans with Disabilities Act (ADA).
Title I of the ADA prohibits employers from discriminating against a qualified individual based on disability. It applies to private employers with 15 or more employees, state and local governments, employment agencies, and labor organizations. The ADA requires employers to provide reasonable accommodation to a qualified individual with a disability, unless doing so would impose an undue hardship on the operation of the employer’s business (42 USC 12102 et seq.).
An employer may ask for medical certification of reasonable accommodation if it complies with the ADA restrictions on medical inquiries of current employees. Under the Americans with ADA, any medical examination or inquiry required of current employees must be job-related and justified by business necessity. See 42 U.S.C. §12112(d)(4). According to the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the ADA, a medical inquiry or examination of an employee is considered job-related and consistent with business necessity when, among other things, an employee is injured or becomes ill and a question is raised about the employee’s ability to perform the essential functions of the job or an employee requests an accommodation for an alleged disability (such as a request for leave). See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA (7/27/00); EEOC Technical Assistance Manual, 6.6.
Note that the definition of disabilities protected under the ADA is broad and can include temporary medical conditions, not just long-term or chronic conditions. An employee is considered disabled under the ADA if the employee has a physical or mental impairment that substantially limits a major life activity. See 42 U.S.C. §12102. Thanks to the ADA Amendments Act (ADAAA) expansion of the ADA definition of disability, more mental and physical impairments are covered as disabilities, and temporary ailments (such as a shoulder injury needing surgery and recovery) also may meet the definition of disability under the ADA if sufficiently severe. See 29 C.F.R. §1630.2(j)(1)(ix). Further, the Equal Employment Opportunity Commission (EEOC) has indicated that the disability definition is intended to be interpreted broadly. Accordingly, it may be prudent to follow the ADA requirements for medical certifications even if the employee does not appear to be protected as a disabled individual.
The EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations further validates that an employer can require an employee to provide medical documentation that is sufficient to substantiate that the employee has an ADA disability and needs the reasonable accommodation requested. According to the Guidance, documentation is sufficient if it: (1) describes the nature, severity, and duration of the employee’s impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits the employee’s ability to perform the activity or activities; and, (2) substantiates why the requested reasonable accommodation is needed.
An employee does not have to specifically request a “reasonable accommodation” but must only let the employer know that some adjustment or change is needed to do a job because of a disability. To request accommodation, an individual may use “plain English” and need not mention the ADA or use the phrase “reasonable accommodation.”
If an employee with a known disability has not requested an accommodation but is not performing well or is having difficulty in performing a job, the employer should address the performance problem in the same way it addresses performance of an employee without a disability. The employer should not assume that the employee’s poor performance is related to a disability or to a need for accommodation. The EEOC has published a fact sheet to assist employers in applying performance and conduct standards to employees with disabilities. The publication is available on the EEOC’s website.
If an applicant or employee requests an accommodation and the need for the accommodation is not obvious, or if the employer does not believe that the accommodation is needed, the employer may request reasonable documentation to determine if the impairment is a covered disability and the extent of the individual’s functional limitation.
The EEOC Enforcement Guidance also indicates that an employer may require medical certification when an employee on medical leave seeks to return to work if the employer has a reasonable belief that an employee’s present ability to perform essential job functions will be impaired by a medical condition or that the employee’s medical condition would be a direct threat. According to Q&A 17 in the Enforcement Guidance, any inquiries or examination must be limited in scope to what is needed to assess the employee’s ability to work. Usually, inquiries or examinations related to the specific medical condition for which the employee took leave will be all that is warranted. The employer may not use the employee’s leave as a justification for making far-ranging disability-related inquiries or requiring an unrelated medical examination.
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