If an employee requests a leave of absence as an accommodation under the Americans with Disabilities Act (ADA), can I require medical documentation from their health care provider? If so, how much time does the employee have to provide me with the documentation?
In most instances, you may require medical documentation to substantiate the need for a leave of absence as an accommodation under the Americans with Disabilities Act (ADA), as well as California’s related law, the Fair Employment and Housing Act (FEHA). Unfortunately, neither law specifies a time limit for the employee to provide the medical documentation.
When is an employer permitted to require medical documentation under the ADA and the FEHA?
When the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about their disability and functional limitations. Non-obvious disabilities may include many common conditions such as migraines, fibromyalgia, depression and sleep disorders.
Reasonable documentation means that the employer may require only the documentation necessary to establish that a person has a disability which necessitates a reasonable accommodation.
For example, if an employee asks to change to a shift that starts later in the day due to a sleep disorder, the employer may request documentation from the employee’s health care provider verifying that the employee has a disability (but not the diagnosis); a description of how the employee’s limitations impair their ability to perform the duties of the job and an indication of whether these limitations are temporary or permanent; and a recommendation of specific reasonable accommodation(s).
An employee whose disability is not obvious, and who fails to provide requested medical documentation, is not entitled to reasonable accommodation.
Time Limit for Providing Medical Documentation
Neither the ADA nor the FEHA have a specific time limit for the employee to provide medical documentation to support a request for reasonable accommodation. This often leaves employers wondering how long they must wait, and whether they must begin the requested accommodation before receiving documentation. There are no easy answers to these questions.
Many employers choose to apply the timelines from the family leave laws, which require that an employer allow at least 15 days to return a certification, and then provide extra time if the employee is unable to obtain it for reasons beyond their control.
Some examples might be when an employee needs to see a specialist with whom it is difficult to get an appointment, or when an employee’s physician is out of the office on vacation.
The federal Equal Employment Opportunity Commission (EEOC) — which enforces the ADA — notes in their guidance documents that employers may need to be more flexible about documentation due to delays caused by the current COVID pandemic.
Employers should consider creating a disability accommodation policy that lays out the steps and expected timeframes for the interactive process required under the ADA and the FEHA.
Although there is no formal paperwork required under these laws, employers may choose to create forms to request accommodation, as well as medical documentation forms, and would be wise to include the expected timeframes for returning them at the top of the forms.
Keep in mind that the employer has more responsibility for participating in the interactive process to determine reasonable accommodations than does the employee, so a prudent employer should make and document their attempts to seek documentation even after the deadline.
Starting Accommodation Before Receiving Medical Documentation
The ADA and the FEHA do not provide specific guidance about whether an employer is obligated to begin an accommodation, such as providing a leave of absence, before receiving medical certification.
The EEOC provides this guidance: “An employer should respond expeditiously to a request for reasonable accommodation… Similarly, the employer should act promptly to provide the reasonable accommodation. Unnecessary delays can result in a violation of the ADA.” (EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act).
California’s regulations implementing FEHA, however, say: “If the medical documentation provided to date does not support any reasonable accommodation, no reasonable accommodation need be required.” (California Code of Regulations, Title 2, Section 11069(d)(6)).
Employers should therefore consider granting a leave as an accommodation even before receiving medical documentation, absent undue hardship, conditioned on receiving documentation in a timely fashion.