Deciding Whether a Worker With Disabilities Needs Accommodations

Question: When is an employer not required to give accommodations to a disabled worker?

Answer: When the employee doesn't need them to perform the essential functions of his job.

That's what the U.S. Court of Appeals in Chicago held in a recent decision, Hooper v. Proctor Health Care Inc.

"Duh," one may scoff, "isn't that obvious?" Perhaps it should be, but it's an important point employers sometimes overlook when dealing with employees with physical or mental handicaps.

Partial blame for this oversight may lie with employment lawyers. In order to protect against failure to accommodate lawsuits under the Americans with Disabilities Act ("ADA"), lawyers have, quite properly, preached to their clients the importance of engaging in an "interactive process" with disabled individuals to attempt to identify and agree upon reasonable accommodations for them.

But this emphasis on the interactive process may cause some employers to fail to ask a fundamental, threshold question: Does the disabled person need any reasonable accommodations?

This "interactive process" is only required when one or more reasonable accommodations are necessary to enable a person with a disability to perform the essential functions of the job. In the Hooper case, the plaintiff was a doctor in an outpatient, urgent and primary care facility. In 2010, an off-duty incident precipitated a flare-up in his previously diagnosed bi-polar disorder, and his psychiatrist placed him on a medical leave.

Less than a month later, Dr. Hooper's psychiatrist released him to return to work without restrictions, but his employer determined that he should continue on paid leave until an independent medical exam confirmed his fitness for duty. After that exam, the independent psychiatrist also released him to return to work without restrictions the next day.

However, when Dr. Hooper did not return to work over two weeks after being released for duty, his employment was terminated. He sued Proctor for disability discrimination and also argued that Proctor had failed to reasonably accommodate him because it fired him without engaging in an interactive process to discuss accommodations. The district court granted summary judgment for Proctor on both claims, rejecting the reasonable accommodation claim because Dr. Hooper had failed to assert it in his complaint.

On appeal, the Court of Appeals ruled that even if he had properly alleged a failure to accommodate it wouldn't have mattered because the doctors had released him to return to work without any accommodations. In short, when, as Dr. Hooper's doctors concluded, a person with a disability can perform the essential functions of a job without reasonable accommodation, no such accommodation (and thus, no interactive process) is required.

Here is the key takeaway from this case: Before beginning a discussion with a disabled employee about reasonable accommodations, an employer should first inquire as to what accommodations, if any, the employee's doctor recommends.

Although the doctor's recommendations are not always controlling, they usually are entitled to great deference, and consequently, should be the logical starting point for the analysis. Sometimes employees insist upon accommodations not proposed by their physicians which may be unreasonable or pose undue hardships for their employers. When this occurs, employers should confirm in writing the accommodations suggested by the employees' doctors or the fact that no accommodations were suggested.

If the doctor's recommendations regarding accommodations differ significantly from what the employee is requesting, the employer should meet with the employee as part of the interactive process and ask for clarification and specifics as to why the employee believes the additional accommodations are necessary.

If an employee's doctor has not provided the employee with any recommendations about accommodation or recommends accommodations which seem excessive or unreasonable, the employer should ask the employee to sign a medical release authorization and send it to the doctor with the employer's specific questions.

May an employer request a second opinion from a different doctor as to the reasonable accommodations requested by the employee's doctor?

An enforcement guidance issued by the Equal Enforcement Opportunity Commission indicates that the ADA regulations do not permit such a second opinion unless the employee's doctor has provided insufficient information to substantiate that the employee has a disability and needs accommodation.

The Hooper case did not fit that exception, but the employer was permitted to obtain a second opinion because it wanted an independent medical exam to confirm that the doctor was fit to return to work. However, as the Hooper case teaches, when the doctor states that no work restrictions (i.e., accommodations) are needed, absent unusual circumstances this should be the end of the discussion.

For more information, contact Wayne "Skip" Adams or any member of Ice Miller’s Labor, Employment and Immigration Group. He can be reached at wayne.adams@icemiller.com or 317-236-2117.

Skip Adams is a partner Ice Miller's Labor and Employment Group. Since 1974, Skip's practice has been devoted to the representation of employers primarily in employment and labor matters. He regularly advises clients concerning employment contracts, separation and severance agreements, trade secret and non-compete covenants, change in control provisions, and asset purchase agreements. Skip also has substantial experience in defending employers in employment discrimination cases, wrongful discharge lawsuits and labor arbitrations.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

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