We didn’t require medical documentation earlier this year for many employees to work from home because of COVID-19 and for a personal medical condition. Can we now require an employee to provide documentation to continue to support a work from home accommodation, and if so, what can be required? What if we don’t get the clarification requested?
Yes. Many employers did not require medical documentation and are now reassessing accommodations based on current business needs. Make sure you are reviewing all of your accommodation requests regarding COVID-19 collectively. You can’t require documentation of one employee, but not another.
Per the Equal Employment Opportunity Commission (EEOC)’s guidance, when an employer engages in the ADA interactive process the employer may seek disability-related information, as follows:
Have a conversation with the employee (Use Short Term Script 1) to let them know you will be seeking clarification from their provider. Then send them a letter with a questionnaire for their provider (Form ST-1).
Early on in the pandemic, many providers were not seeing patients or responding to questionnaires. Today, we are many months into the pandemic and health care providers are providing reasonable medical documentation and will respond to questionnaires. Consider providing employees with a brief 2-week temporary accommodation, as requested and without documentation, but advise the employee that if the questionnaire is not returned, this temporary accommodation will end (language in Short Term Script 1 and Form ST-1). If clarification is not returned after two weeks, then call the employee (using Short Term Script 3b) informing them they are now being placed on an unpaid leave (using whatever contractual leave they have –this is not FFCRA leave) until that clarification is returned. Follow up by sending the employee a letter informing them of their leave of absence (Form ST-3b).
The program is being offered for free on the Shaw HRC website.
Program materials have been created to help employers manage accommodation requests during the COVID-19 pandemic related to disability — such as requests to work from home — at a time when organizations are asking employees to return to the workplace or requests for leave related to COVID-19.
The Program is designed to offer employers an ADA compliant framework to manage work from home requests during this unprecedented time. As with all compliant programs, a consistent process is key to ensure your good faith efforts are documented. Shaw is happy to provide its clients with this process, as we work together as an HR community to continue doing good work. Click the button below or go to www.shawhrconsulting.com/covid to download program materials.
All program materials should be considered samples and should not be acted on without legal advice. Organizations are encouraged to contact their legal counsel prior to relying on any materials in this program.