To add structure to the often amorphous process of obtaining and evaluating requests for accommodations, employers seeking compliance, efficiency and consistency have developed forms to assist their efforts. In an EEOC Office of Legal Counsel (OLC) “informal discussion letter” replete with cautions for those employers, the OLC said: “The wide range of disabilities, employers, jobs, workplaces, and reasonable accommodations makes it exceedingly difficult to develop a form with questions that almost everyone requesting accommodation would need to answer.” (emphasis supplied). Translated: if you are using an all purpose, one-size-fits-all “request for accommodation” form, it may have some unlawful questions.
The OLC had been asked to review a reasonable accommodation policy, an accommodation request form to be filled out by an employee, and a health care provider questionnaire. With regard to such forms, the OLC said that “employers should consider the purpose behind each question on the form, i.e., whether the answer will provide information concerning the existence of a disability, the need for a reasonable accommodation, or both. Any question that does not address at least one of these issues should be carefully reviewed to determine whether the information requested is necessary to enable the employer to determine the need for a reasonable accommodation, especially if it is a disability-related question.”
The OLC found shortcomings in each of the three documents. For example, the OLC questioned the statement in the policy that “unscheduled” leave is not a reasonable accommodation since “[i]t is highly unlikely that an employer could deny unscheduled leave in all cases.” The OLC also noted that requiring each employee who requests an accommodation to complete the request form “will violate the ADA in most, if not all, instances” because “an employer cannot justify routinely asking individuals requesting a reasonable accommodation to divulge in detail their treatment plans.” The OLC also noted that the form asked employees to address the need for accommodations they have not requested. Some questions asked about an employee’s ability to work a normal schedule, which is irrelevant if the accommodation sought is modified equipment.
As for positive guidance, a form could ask “in plain English” information about the nature of the requestor’s impairment and its expected duration; the kind of activities, including major bodily functions, that the impairment affects; the way in which the activities are affected; and “the use of mitigating measures and the extent to which they eliminate or control the impact of the medical condition,” the OLC stated.
A form could also ask “how an accommodation would assist the individual to apply for a job, perform the job’s essential functions or enjoy equal access to the benefits or privileges of employment,” the OLC said.
Many employers use forms in administering accommodation requests. Since this OLC letter is the most focused guidance concerning the use of such forms, employers should analyze each of the questions on their forms using the guidance in this letter.