Accommodating Disability: Reasonable Employer Expectations
As a lawyer who works on both sides of the management/employee divide, I see both sides of disputes relating to disability accommodation issues.
There's a lot of confusion and uncertainty about what information the employer is (or isn't) entitled to, and what the employee needs to do to in order to fully engage an employer's duty to accommodate.
The Duty to Accommodate, Generally
People are entitled to be free from discrimination in employment on the basis of disability (among other things). This engages an obligation upon employers to offer 'reasonable accommodation up to the point of undue hardship' to disabled employees who require such accommodation in order to be able to fulfill the needs of the job.
While there's nothing wrong with an employer setting various requirements of a given position, if an employee says "I have a disability that prevents me from meeting this requirement", an employer needs a compelling justification for nonetheless insisting on that requirement being met. So if my employer has a policy requiring dress shoes, and I need to wear a 'boot' for several months because of a fracture, my employer can't just say, "Sorry, no exceptions to the policy".
Out of a misguided sense of 'fairness', employers are sometimes unwilling to consider giving exceptional treatment to a disabled employee because of how it will be viewed by other non-disabled employees. This is not generally a reasonable consideration. The duty to accommodate, at its core, is an obligation to give exceptional treatment to people who require it for specified reasons.
This post will not explore the definition of 'disability' or how an employer can explore the bona fides of an employee who asserts they're disabled; nor will this post look indepth at the substance of the obligation to accommodate, except to say that it's very context-driven, requiring an employer to make adjustments to the relationship
The important point that is misunderstood, at the core of this article, deals with the process by which accommodation should be sought and assessed.
What Employers Are Entitled To Know
The first basic proposition here is that employers are not entitled to know the employee's diagnosis. However, they are entitled to know 'functional limitations'.
Usually, and reasonably, these should come from a medical practitioner competent to assess those limitations.
In some cases, these are straightforward. If a person has a physical disability that leaves them bound to a wheelchair, then they are unable to walk at all, stand at all, or do any task that requires walking or standing.
However, for many types of disability - such as mental/emotional disabilities, chronic pain/fatigue, orthopedic disorders, repetitive stress injuries, etc. - the outsides of those limits can be much more difficult to nail down, often allowing people to perform some degree of most tasks for limited periods of time and/or up to limited degrees of exertion, or even allowing them to work unmodified most of the time except for unpredictable periods of flare-ups.
To varying degrees, these make it more difficult for a doctor's note to comprehensively address the extent of those limits. You'll often see limits on the amount of weight to be lifted or the duration of time the employee can sit and/or stand. But particularly when you get into matters with more elusive clinical indicators, there's a tendency for doctors to prescribe the accommodation, not the limitation.
This is a fine line, and it's a problem.
I've seen increasing notes in recent years indicating that the employee needs to work from home. But this runs into a couple of issues, and doesn't really give the employer the information they need and are entitled to in order to assess an accommodation request. I'll come back to this below.
Employees Aren't Entitled to Preferred Accommodation
The obligation on employers isn't to give the employee what they want. The obligation is to offer 'reasonable' accommodation, where it can be done without undue hardship, that allows the employee to maximally carry out the role within their functional limitations.
This might involve modified hours, modified duties, additional workplace supports, accessibility aids, etc.
But if there are multiple theoretical ways in which limitations might be addressed, the employee doesn't get to choose. The employee can make proposals for how their limitations might be accommodated, but - even assuming the accommodation is otherwise suitable - the employer can satisfy its legal obligations by saying "No, we're going to accommodate you by making these other modifications instead."
Employers Must Consider Reasonable Alternatives
Conversely, where an employee's requested accommodation isn't suitable, and the employer doesn't feel that they can offer that particular solution without undue hardship, they can't just say "No" and wash their hands of it.
The employer is uniquely situated to understand the various business impacts of offering any particular accommodation method; it's the role of management to evaluate whether and how it can accommodate the employee's medical restrictions without unduly impacting its business. As such, where the answer to an accommodation is "No", that should be followed by an alternative accommodation method.
The exception is where the employer has diligently assessed other options and determined either (a) that there are no reasonable alternatives or (b) that the other alternatives would cause them undue hardship. (NB: It is not enough to say "This would cause us hardship." The hardship must be 'undue', which creates a higher threshold.)
An employer's assessment process, conducted at the front end and in good faith with reference to legitimate considerations, will invite a degree of deference from tribunals. In practice, if an employer makes a case that it looked at an option and reasonably determined that it would have significantly impacted their legitimate business needs, tribunals are unlikely to tell them "You should have done it anyways." However, in the absence of evidence of this process, it's not enough to come in with an ex post facto argument that it would have constituted undue hardship.
Parties Must Cooperate in Assessing Accommodation
The employer doesn't stand alone in ensuring that an employee's disability is accommodated.
Employees owe obligations in providing employers with information they require to be able to accommodate; in working with the employer to try to facilitate reasonable accommodation; etc.
Accommodation is a two-way street, and typically an ongoing concern. I generally discourage both sides from assuming that any particular accommodation measure is going to be long-term, even with ongoing disabilities. If an accommodation measure causes operational problems of unexpected severity, an employer is entitled to re-assess - and while the instinct for employees is to think that withdrawal of an accommodation measure looks like bad faith, I would argue the opposite (provided the evidence bears out problems that motivated the change), in that it illustrates good faith effort by the employer to try out a solution.
Again, if that solution turns out not to work, the obligation remains to consider others, as before.
On the employee end, if an accommodation measure turns out not to be medically suitable, then the employee should work with their doctor and employer to nail down the limitations that it engages, to be able to go back to the drawing board and see whether a better option might be available.
Employers Should Avoid Making Assumptions
Going back to the "Employers aren't entitled to diagnosis" point, sometimes they know (or infer, rightly or wrongly) anyways what the diagnosis is, and may try to address assumed limitations where no accommodation has been requested, based on their (usually non-medical) understanding of the underlying condition.
If you have a doctor's note setting out the employee's limitations, it is deeply inappropriate to make assumptions regarding limitations not contained in the medical report, and flagrantly discriminatory to modify duties based on such assumptions.
This is an issue that frequently arises with pregnancies. Not all pregnancies are the same, and not all pregnant employees have the same needs, and so while it may be true that a given pregnant employee might require some modifications to their duties, changing a pregnant employee's duties because of the employer's preconception of what pregnant employees can/should do, without being asked for accommodation, may be an unwelcome and unnecessary change to the person's employment situation resulting from the pregnancy.
It arises in other circumstances, too, sometimes in a similar sense of an employer modifying duties in ways that aren't necessary or appropriate, and sometimes in the opposite sense where an employer rules out available accommodations because of an assumption, not warranted on known restrictions, that the employee's condition would not allow them to do something.
Practical Problems
Having ironed out those basic propositions - which aren't comprehensive, by the way - we come to what usually happens: The employee seeks accommodation, often with a doctor's note supporting the accommodation instead of providing specifics of functional limitations, and the employer looks at the accommodation request and says, "Well, we can't do that without undue hardship, and we don't have the information we need to consider alternatives in an informed fashion."
That's an unfair position to put employers in, and it often results in one of two different mistakes:
- Employers propose or impose alternative accommodations based on assumed functional limitations, lacking the knowledge or expertise to do so, thereby removing responsibilities from the employee based on unwarranted stereotypes; or
- Trying to avoid making assumptions, employers say "no" and do nothing else, meaning that they're making no effort to accommodate an employee with identified disabilities.
The thing is...these are understandable mistakes - both instances of employers trying to do the right thing. The breakdown of the accommodation process starts with the employee's failure to provide appropriate information, and continues with the employer's understandable ignorance as to how to respond to that inadequate information.
The right answer, however, is not complicated: Ask. Don't make assumptions, but also acknowledge that the ball is in your court following the accommodation request, so tell the employee that the requested accommodation isn't possible, and you're willing to consider alternative accommodation measures, but you need more information about their functional limitations.
(Best practice is to have a policy that includes a Functional Abilities Form that you require medical practitioners to complete - so that you can just give the employee the form to take to their doctor. My office can assist in developing such policies and forms.)
Takeaways for Everyone
Employees need to better understand that, while the employer has duties to accommodate, you don't get to dictate that. You want accommodation, you need to provide the employer with the information they need to be able to assess their options.
Just because you bring in a doctor's note saying that you medically require a workstation in a hot tub with a dedicated assistant to bring you mimosas...doesn't mean that the employer will be obligated to provide that for you. And the more difficult or extravagant the request, the more likely they're just going to say "No".
Employers need to understand that they need to approach accommodation proactively, constructively, and with an open mind. While it's understandable to conclude that there's nothing you can do without adequate information, just throwing your hands up in the air and ignoring it isn't the solution. You're able to (and you should) put certain obligations on the employee, such as providing medically-substantiated specifics of their functional limitations.
And for medical practitioners: One of the inherent challenges here is that you're getting all your information from the patient/employee, including about operational conditions of the business, and I think most of you will readily acknowledge that you're not really in a position to assess the reasonableness of specific accommodation measures.
In a perfect world, you'd be part of a more direct conversation with the employer, but that's generally going to be too demanding on your time to be feasible, as a matter of practice.
So in the real world, when you're being asked for a note to support accommodations, the best thing you can do for your patient is to stay away from recommending specific accommodations, and instead delineate their functional limitations as best you can, to be able to give the employer what they need to assess what accommodation options might be operationally available that work around those limitations.
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This post does not contain legal advice, but only general legal information. It does not create a solicitor-client relationship with any readers. If you have a legal issue or potential issue, please consult a lawyer.
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