Compliance Makeover: Securing ADA Medical Data

DMEC Staff@Work

ADA Interactive Process: How to Get Clear Medical Information

Securing ADA Medical DataBy Rachel Shaw, MBA

Principal
Shaw HR Consulting, Inc

Managing reasonable accommodation requests is complex. Every employee is different, work environments vary, and medical restrictions come in a wide variety of shapes and sizes.

Mastering the Americans with Disabilities Act (ADA) interactive process includes understanding everything from what triggers the interactive process and how to hold an accommodations meeting, to dealing with challenges including leave management, discipline issues, and mental disabilities.

Regardless of the complexity or type of interactive process you enter, one thing is always essential — obtaining clear medical information. The key word here is “clear.”

At its core, the goals of any interactive process are to determine:

  1. Does the employee have a disability that substantially limits one or more major life activities?
  2. If there is a disability, could any accommodations be implemented that would support the employee to successfully and safely perform the essential functions of the job?

I’ve managed tens of thousands of disability compliance cases and have developed what I call a “hallway approach.” It’s a metaphorical hallway with four doors, or key process steps, which lead you through the hallway and to a justifiable decision and best possible outcome for an employee who may, or may not, need workplace accommodations. Each door serves as a step along the path of ADA compliance: Door #1, Medical Documentation; Door #2, Exploration of Accommodation Ideas; Door #3, Scheduling and Holding a Reasonable Accommodations Meeting; and Door #4, Closing the Process Properly.

In virtually every case — whether there is performance deficiency, leave issues, or even concern over a fraudulent claim — Door #1, obtaining clear data, will be the most important step. This data will be the basis for all reasonable accommodation decisions. I cannot stress enough how vital clear information is, as it can very well be used to change and/or end someone’s career. At this “door”, you will gather:

  • Medical documentation, including medical clarification on work restrictions and/or leave needs and proposed duration of leave
  • Essential job functions analysis (EFJA), which includes the employee’s essential job functions and how these functions are optimally performed in a physical, mental, and emotional sense.

Disability-related issues are often emotionally charged; it is not unusual to see workplace accommodation-related misconceptions, concerns, frustrations, and fears arise. Using clarified medical information and a solid EFJA document helps to focus the parties on tangible data sets and documents instead of emotions, which more often than not, translates into better decisions and lower risk for your organization.

At the onset, the employer will need to establish if the employee has a covered disability. Think of it this way: The employee has arrived at the “hallway” with a medical note in hand. At this point, you don’t know whether the employee will be provided with reasonable accommodations. Your first task is to determine whether the employee is in the right place: Do they have a covered disability?

To gather this information, you’ll need to create a questionnaire for the employee’s healthcare provider. The questionnaire should always start with the same two questions:

  1. Does [Employee name] have a physical or mental impairment that limits his/her ability to engage in a major life activity such as the ability to work; care for him/herself; perform manual tasks; walk; see, hear, eat or sleep; or engage in social activities?

 NO, [Employee name] does not have a physical or mental impairment that limits his/her ability to engage in a major life activity.

 YES, [Employee name] has a  PHYSICAL and/or  MENTAL impairment that limits his/her ability to engage in a major life activity.

  1. If the answer to question 1 is yes, does the impairment currently affect [Employee name]’s ability to perform all the essential functions of a [position title] with the attached job description?

 NO, [Employee name]’s impairment does not limit his/her ability to perform all the essential functions of his/her position.

 YES, [Employee name]’s impairment does affect his/her ability to perform all the essential functions of his/her position.

Next, the questionnaire continues with queries aimed at clarifying work restrictions or leave needs. When two parties are reviewing unclear restrictions, such as “no heavy lifting or prolonged standing,” there can be too much ambiguity as to what is defined as “heavy” or “prolonged.” This can result in opinions that knowingly, or unknowingly, rely on prejudices or positions. Decision making is easier when data is clear. For example, if restrictions state “no lifting over 10 pounds when lifting with the right hand or left hand, and when lifting with both hands, can lift 20 pounds,” lifting is no longer an estimation or guess, it is a clear restriction.

Just as important, when seeking clear and precise work restriction information from healthcare providers, employers should not accept accommodation suggestions. It is the employer’s responsibility to determine what, if any, accommodations are reasonable. It is the healthcare provider’s responsibility to provide work restrictions, leave needs, and the duration of such. Here’s why: healthcare providers don’t have a clue as to what may be reasonable to implement in your organization. If they provide accommodation suggestions, they limit the discussion and both parties’ ability to find alternatives that could be more helpful and/or reasonable.

Don’t be afraid to push healthcare providers to provide the data needed. One way to do this is by creating a questionnaire with short answer blocks and check box options. This makes life easier for healthcare providers to complete and greatly increases the likelihood of getting the specific data to move the process forward in a timely manner. You may need to ask a healthcare provider to clarify limitations more than once. That’s okay. Don’t be afraid to ask for the data you need. Persistence and commitment in getting clear definitions on work restrictions is required to do this task well.

While employers can and should ask about work restrictions and expected leave duration, they should not ask healthcare providers about employee diagnosis, condition name, or treatment specifications. You don’t need this, the employer is likely not legally entitled to it, and learning the name of a diagnosis is often not helpful. It is not uncommon to see 12 people with the same diagnosis, yet none will share the exact same restrictions or accommodation needs. Stay focused on what is useful and what you are entitled to have — restrictions, leave needs, and the duration of each.

Cost also often comes into play. Know that an employer is not required to pay for the cost of the provider completing the questionnaire, unless the provider is an accepted workers’ compensation doctor. Questionnaires can be sent directly to the provider, or you can request an employee take it to the provider directly. Ask a provider to return the questionnaire within 10 calendar days — and then follow up to ensure it has been received. Add a calendar reminder for yourself to continue to follow up until the questionnaire is received back. Diligence in this area is often rewarded, as completing additional paperwork is rarely a priority for a doctor’s office.

Once clear medical information is gathered, and with its counterpart the EFJA document, you are equipped to enter the next “door” in the interactive process hallway. All subsequent “doors” you pass through including exploring accommodation ideas, holding an accommodations meeting, and closing the process will all continue to use the data collected.