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EMPLOYEE ADVOCACY, REPRESENTATION, AND LITIGATION

Can My Employer Talk To My Doctor When I Request A Reasonable Accommodation?

A reader asks:

I requested a reasonable accommodation due to my disability. I gave my employer two doctor's letters; one from each of my two specialists. I also wrote my employer a letter myself.

Can your boss talk to your doctor? Image © tibanna79 -- stock.adobe.com

Can your boss talk to your doctor? Image © tibanna79 -- stock.adobe.com

Now, they are demanding to have a conversation with my doctor because they have "concerns." I requested a letter from them explaining the concerns and what questions they have, and I told them that my doctor would answer them in writing. My employer refuses to accept a letter. They say that the doctor's answer might lead to other questions.

Are they allowed to have a conversation about my medical condition with my Doctor?

Let's take a look.

The ADA Requires Employers to Accommodate Employees with Disabilities.

The law in question here is Title I of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12111-17, which we'll just call the ADA. Here's what the law says about reasonable accommodations:

The ADA makes it illegal for employers to discriminate against "qualified individuals" based upon a disability.  There are lots of questions about who's a qualified individual, and what a disability is, but we'll save those questions for another day.

Section 12112(b)(5) of the ADA says that an employer discriminates if they fail to make a reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual. In essence, your job has to give you a reasonable accommodation when you are disabled, with some important exceptions that, again, we'll save for another day.

So our reader is wondering, since he's asked for a reasonable accommodation, can his boss now talk to his physician?  Let's talk about what happens once you request a reasonable accommodation. 

The Interactive Process.

When your employer learns that you have a disability and that you desire an accommodation, it becomes obligated to engage with you in an "interactive process" to figure out if a reasonable accommodation can be extended to you. As part of that interactive process, an employer can ordinarily request medical documentation of your disability. It can even request additional information, if it explains to you why the information you've already provided is insufficient.

Maybe now is a good time to point out that the interactive process is not intended to be an adversarial one between you and your employer, even though you may feel like your employer treats it that way. Instead, both sides have an obligation to act in good faith, and to ensure that the process doesn't break down. Both you and your employer have to continue to participate in good faith to try to find that reasonable accommodation.

The interactive process is a means to an end, not a goal in itself. Remember that your goal is to receive a reasonable accommodation for your disability. Be wary of causing the process to breakdown, and maintain your professionalism throughout. If this is difficult for you, hire an attorney to help you navigate the process. Image © Tom Wang stock.adobe.com

The interactive process is a means to an end, not a goal in itself. Remember that your goal is to receive a reasonable accommodation for your disability. Be wary of causing the process to breakdown, and maintain your professionalism throughout. If this is difficult for you, hire an attorney to help you navigate the process. Image © Tom Wang stock.adobe.com

Your Employer Can Probably Ask To Speak With Your Physicians.

So let's assume that our reader's employer legitimately believes that there are questions that need to be answered by the reader's physicians. Let's assume that the employer genuinely believes that it cannot determine whether the employee is capable of meeting the essential functions of the job, or whether the requested accommodation will allow the employee to meet the essential functions of the job. Maybe the employer has a good faith reason to believe that the employee poses a threat to himself or coworkers.

 

In this case, a court would likely find that the employee was the cause of the breakdown in the interactive process if the employee unreasonably prohibited the employer from speaking with the physician. If this matter proceeds to court, both sides want to be able to show the judge that their efforts in the interactive process were genuine, and that they were not the cause of any breakdown.

Do You Trust Your Employer?

Now, what if you simply don't trust your employer's motivations in speaking with your doctor. Maybe some things have happened that suggest that your employer is not, in fact, engaging in the interactive process in good faith. Maybe the employer is actually looking for any reason not to extend the requested accommodation and to dismiss you. 

If you find yourself in a situation like this (and you're in Virginia), you need the help of an experienced Virginia employment attorney. A Virginia employment attorney can help you navigate the ADA's requirements and work with your employer to ensure that your  career continues and that you get the accommodation you need to find success. J. Madison PLC can help with that. Click here to request an in-person Case Evaluation with Attorney Jacob Small.

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