Employers seeking to adopt standardized forms relating to the ADA’s interactive process need to familiarize themselves with a recently published EEOC advisory letter commenting on a sample policy, request for accommodation questionnaire, and health care provider questionnaire.
While the advisory letter does not provide the exact policy and forms in question, the materials did provide a platform for the EEOC to express several concerns about the use of “one-size fits all” forms. The EEOC explains that the ADA, and particularly the reasonable accommodation process, must be handled on an individualized basis and, consequently, it is difficult for an employer to develop a policy and related forms that can appropriately address all variables. Moreover, the EEOC believes that longer forms attempting to account for more variables are more likely to include questions violating the ADA.
The EEOC’s detailed discussion of the materials provides broader lessons that employers would take heed to consider if determined to adopt standardized materials for use during the ADA’s interactive process.
- An employer wishing to use forms should:
- Make sure the forms are written in plain English, providing examples of legal terms (e.g., “major life activity/major bodily function, “mitigating measures”);
- Avoid asking questions that are either unnecessary (e.g., asking someone with an obvious disability to establish the disability) or seek information irrelevant to the current request for an accommodation (e.g., asking someone with a physical disability requesting a modified work station for psychiatric records);
- Consider the purpose behind each question on the form, i.e., whether the answer will provide information concerning the existence of a disability, the need for a reasonable accommodation, or both. Questions that do not address at least one of these points should be carefully reviewed.
- An employer wishing to use forms can ask:
- Regarding the existence of a disability: about the nature of the employee’s impairment and its expected duration; the kind of activities, including major bodily functions, that the impairment affects; and the way in which the activities are affected;
- Regarding the use of mitigating measures: whether any are used and the extent to which they eliminate or control the impact of the medical condition;
Regarding the need for reasonable accommodation: how an accommodation would assist the individual to apply for a job, perform the job’s essential functions, or enjoy equal access to the benefits and privileges of employment.
- The EEOC was troubled by the forms’ inclusion of language that suggests:
- Certain possible reasonable accommodations are never required (e.g., unscheduled absences, work-at-home);
- If an employee does not use an available mitigating measure the employer has no duty to accommodate;
- An individual must be substantially limited in the major life activity of working to obtain an accommodation;
- The employer is broadly entitled to any medical information it wants simply because of a requested accommodation;
- The information sought about certain possible accommodations excludes the possibility of other accommodations; and
- That employees cannot return to work unless they are “fully recovered” or able to work “without restrictions.”