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Reasonable Accommodation
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An employee has been on restrictive duty for the past 3 years, per notes from their chiropractor. Each say the cause is arthritis. The last note is from August 2008 (employee gave one other note in 20
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Reasonable Accommodation
posted at 8/24/2009 5:23 PM EDT
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Posts: 1
First: 8/24/2009 Last: 8/24/2009 |
An employee has been on restrictive duty for the past 3 years, per notes from their chiropractor. Each say the cause is arthritis. The last note is from August 2008 (employee gave one other note in 2008 but gave a new note from 2007 and prior). Typically, the notes say the restrictive duty is from that date until the next evaluation but on the last note on file, the writing is not legible. Last week, this employee went to the top boss saying that their reasonable accommodations have not met, yet their job has not changed (if anything, their job has lessened due to the economy and less work to do). I had just spoken to that employee that same day about another matter and nothing was said. Can we ask for a new note since the last note is a year old and there are no noticeable disabilities? Can we require the note from an MD vs. chiropractor? We do value the employee and are willing to do what we have to do but, we also don't want other employees to “pop up” with problems too. Thank you in advance. (Business has over 100 employees, this employee is a full time employee) |
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Reasonable Accommodation
posted at 8/24/2009 5:39 PM EDT
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Posts: 3870
First: 2/12/2002 Last: 11/2/2009 |
From the EEOC guidelines on ADA enforcement:
"Generally, a disability-related inquiry or medical examination of an employee may be "job-related and consistent with business necessity" when an employer "has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat(39) due to a medical condition."(40) Disability-related inquiries and medical examinations that follow up on a request for reasonable accommodation when the disability or need for accommodation is not known or obvious also may be job-related and consistent with business necessity. In addition, periodic medical examinations and other monitoring under specific circumstances may be job-related and consistent with business necessity.(41)" And.... "10. What documentation may an employer require from an employee who requests a reasonable accommodation? An employer may require an employee to provide documentation that is sufficient to substantiate that s/he has an ADA disability and needs the reasonable accommodation requested, but cannot ask for unrelated documentation. This means that, in most circumstances, an employer cannot ask for an employee's complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation.(53) 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. Example: An employee, who has exhausted all of his available leave, telephones his supervisor on Monday morning to inform him that he had a severe pain episode on Saturday due to his sickle cell anemia, is in the hospital, and needs time off. Prior to this call, the supervisor was unaware of the employee's medical condition. The employer can ask the employee to send in documentation from his treating physician that substantiates that the employee has a disability, confirms that his hospitalization is related to his disability, and provides information on how long he may be absent from work.(54) 11. May an employer require an employee to go to a health care professional of the employer's (rather than the employee's) choice when the employee requests a reasonable accommodation? The ADA does not prevent an employer from requiring an employee to go to an appropriate health care professional of the employer's choice if the employee provides insufficient documentation from his/her treating physician (or other health care professional) to substantiate that s/he has an ADA disability and needs a reasonable accommodation.(55) However, if an employee provides insufficient documentation in response to the employer's initial request, the employer should explain why the documentation is insufficient and allow the employee an opportunity to provide the missing information in a timely manner.(56) The employer also should consider consulting with the employee's doctor (with the employee's consent) before requiring the employee to go to a health care professional of its choice.(57)" |
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Reasonable Accommodation
posted at 9/27/2009 3:27 PM EDT
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Posts: 12
First: 9/27/2009 Last: 9/28/2009 |
Check your state regulations as well in many states the ADA is Johnny come lately; some states have a much broader term of disability than the ADA. As well as more stringent rules on the employers obligation to accommodate.
As far as chiropractors personally I don't trust them for a whole host of reasons that go beyond this post. |
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Reasonable Accommodation
posted at 9/29/2009 8:01 AM EDT
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Posts: 3870
First: 2/12/2002 Last: 11/2/2009 |
Nice thought and I agree with you, but in some states chiropractors are considered licensed health care professionals with the same status as doctors. California is one of those and there's been much written on how including chiropractors as professionals for certifying workers comp injuries has added immeasurably to the California WC rolls. |
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Reasonable Accommodation
posted at 9/29/2009 9:05 AM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
Be careful on the definitions of "health care provider" It is possible under FMLA that a chiropractor could be defined as such.
And from a document from the EEOC: "To determine if an individual has an ADA disability,all pertinent evidence, including any information about whether the individual has or had a "serious health condition," should be considered....The employer may require FMLA certification33 and may make additional disability-related inquiries if necessary to decide whether the employee is entitled to reasonable accommodation because s/he also has a covered disability. However, if the employee states that s/he only wants to invoke rights under the FMLA, the employer should not make additional inquiries related to ADA coverage." http://www.eeoc.gov/policy/docs/fmlaada.html I would not automatically rule out a chiropractor's opinion for an ADA ruling -- it does state "all pertinent information" in the article above. |
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Reasonable Accommodation
posted at 10/5/2009 11:05 AM EDT
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Posts: 15
First: 3/20/2008 Last: 8/10/2010 |
Sorry, gave an opinion as a health care professional. Just got under my skin a little.
Well, hopefully this never comes up with one of my employees, because I know my response when I see a note from a chiropractor. |
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