Gee, Ma, this is swell!
The Equal Employment Opportunity Commission came out this week with some guidance about the rights of individuals with AIDS and HIV. The guidance is unremarkable for anyone who is familiar with the Americans with Disabilities Act, although it never hurts to get a refresher, and in any event it’s aimed at employees, not employers.
But what is really great – and novel, as far as I know – is that the EEOC published a separate guidance document for employees’ health care providers. The guidance briefly explains the ADA, which should be a big help to physicians, who are often unfamiliar with the law, and it explains the concept of reasonable accommodation in a single paragraph.
Best of all, it tells health care providers what type of information they should include when writing an employer in support of an employee’s disability and request for reasonable accommodation.
Some of you may think that’s “helping” a little too much, but I think it will save employers a lot of trouble in going back and forth with employees’ doctors. Let me know whether you agree. Here’s what the EEOC says:
10. What Kind of Documentation Should I Provide?
Employers may require documentation that establishes your patient’s condition and describes how it affects job performance. However, you should not simply provide your patient’s medical records, because they will likely contain unnecessary information. Documentation is most likely to help your patient if, using plain language, it explains the following:
- Your professional qualifications and the nature and length of your relationship with the patient. A brief statement is sufficient.
- The nature of the patient’s condition. If your patient asks you not to disclose the specific diagnosis, it may be sufficient to state the general type of disorder (i.e., “immune disorder”). If your patient’s problems at work are caused not by HIV infection or AIDS themselves, but by a related condition, you may choose to disclose the related condition only.
- The patient’s functional limitations in the absence of treatment. State that the patient’s condition would substantially limit the functions of the immune system in the absence of treatment. Alternatively, describe the extent to which the condition would limit a “major life activity” such as concentrating, seeing, sitting, standing, walking, or breathing, in the absence of treatment. If the effects on functioning come and go, describe what they would be when the symptoms are at their worst. It is sufficient to establish substantial limitation of one major life activity.
- The need for a reasonable accommodation. Explain how the patient’s condition makes changes at work necessary. For example, if your patient needs an accommodation to perform a particular job function, you should explain how the patient’s symptoms – as they actually are, with treatment – make performing the function more difficult. If necessary, ask your patient for a description of his or her job duties. Limit your discussion to the specific problems that may be helped by a reasonable accommodation. Also explain to the employer why your patient may need an accommodation such as a schedule change (e.g., to attend a medical appointment during the workday) or unpaid time off (e.g., to receive treatment or recover).
- Suggested Accommodation(s). If you are aware of an effective accommodation, you may suggest it. Do not overstate the need for a particular accommodation in case an alternative is necessary.
My only question is, Why limit this to AIDS and HIV? I would adapt the EEOC’s form and this list for use when employees with other medical conditions asked for accommodation, too.
Well, ok, I have two more questions. Will doctors read it? And, if they do, will they follow it?
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.