Mcle Self-study: Not What the Doctor Ordered: the Limited Utility of Doctor's Notes During the Interactive Process

• Publication year: 2021
• Author: By Kate LaQuay

MCLE Self-Study: NOT WHAT THE DOCTOR ORDERED: THE LIMITED UTILITY OF DOCTOR'S NOTES DURING THE INTERACTIVE PROCESS

By Kate LaQuay

Kate LaQuay is Principal Attorney at Munck Wilson Mandala, LLP. She has broad experience in business litigation and regulatory matters, with an emphasis on resolving employment disputes on behalf of employers. Ms. LaQuay's practice focuses on wrongful termination, discrimination, retaliation, harassment, and failure to accommodate claims, and wage/hour disputes (including individual, PAGA and class action claims). She received her A.B. from Stanford University and her J.D. from U.C. Davis School of Law. Ms. LaQuay can be contacted at (310) 286-0377 and at marketing@munckwilson.com.

INTRODUCTION

Many non-lawyers have a general understanding that California employers may be required to "accommodate" an employee's disability. Less well understood, however, is that the employer's obligation to do so is subject to certain limitations. In some cases, based on the employee's job, disability and work restrictions, an accommodation that would allow the employee to keep working simply may not exist.¹ However, even if the proposed accommodation were theoretically possible, only accommodations that are "reasonable" under the law must be provided.² For example, an employer is not required to change an employee's supervisor even if the employee's doctor has so requested as an accommodation for the employee's anxiety and depression, because that is not a "reasonable" accommodation.³ Neither employees nor employers should assume that specific job changes are required to be implemented solely because a doctor has "so ordered."

QUALIFYING DISABILITY

Employees with a qualifying disability generally are protected against discrimination, retaliation and harassment by both state and federal law.⁴ California's Fair Employment and Housing Act (FEHA) also requires employers to engage in a good faith "interactive process" with a disabled employee to determine what "reasonable accommodations, if any," are available so that the employee can perform the essential functions of the employee's job.⁵ Employers are liable for not making a reasonable accommodation (assuming it would be possible to do so) unless granting the accommodation would cause "undue hardship" for the employer or would pose a safety risk to the employee or others.⁶

Not every discomfort is a protected "disability" that an employer must accommodate.⁷ An employee who suffers from some degree of anxiety, but whose healthcare provider concedes that there are no work restrictions, need not be permitted to bring the employee's dog to work even if the healthcare provider supports that request.⁸ FEHA is not a guarantee of "a stress-free working environment."⁹ Accordingly, an employee who presents a doctor's note requesting "use of a quieter room" is not entitled to such an accommodation without establishing that the employee suffers from a covered disability that justifies the move.¹⁰ Similarly, "[a]n inability to get along with a particular supervisor is not a disability within the meaning of the FEHA," regardless whether a doctor has recommended a supervisory change.¹¹

Likewise, not every proposed accommodation for an employee's disability must be accepted by the employer. For example, it is not unlawful to fire a disabled veteran based on a positive test result for marijuana, even when the veteran provided the employer with a physician's recommendation for its use, because "FEHA does not require employers to accommodate the use of" substances that are illegal under federal law.¹² An employee whose doctor declares the employee unable to work as a result of congestive heart failure is not entitled to an indefinite leave of absence while waiting for a heart transplant.¹³

REASONABLE ACCOMMODATION, INTERACTIVE PROCESS, AND DOCUMENTATION

When and to what extent, then, are specific proposed accommodations recommended by an employee's physician "reasonable"? FEHA defines "reasonable accommodation" only by providing examples of what it "may include," such as "[j]ob-restructuring, part-time or modified work schedules, reassignment to a vacant position," or "[m]aking existing facilities [] readily accessible to and usable by, individuals with disabilities."¹⁴ Because this list is not exhaustive, courts may look to federal cases decided under the Americans with Disabilities Act for guidance.¹⁵ In California, courts have interpreted a "reasonable accommodation" under FEHA to mean: "a modification or adjustment to the work environment that enables the employee to perform the essential functions of the job he or she holds or desires."¹⁶ Some examples of potentially reasonable accommodations are included in FEHA regulations.¹⁷ The regulations mention accommodations such as: changing "when and/or how an essential function is performed"; "providing assistive aids and services such as qualified readers and interpreters"; modifying "examinations, training materials or policies"; and "[a]llowing applicants or employees to bring assistive animals to the work site."¹⁸

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Employers must initiate an interactive process to evaluate potential accommodations whenever: an employee requests reasonable accommodation; the employer becomes aware of the need for a potential accommodation; or an employee has exhausted a leave yet requires additional accommodation.¹⁹ The duty to engage in the interactive process applies not only when an employee has an actual disability, but also when an employee is perceived as being disabled.²⁰ No particular form, or "magic words," on the part of the employee are required in order to trigger the duty to engage in the interactive process,²¹ and the employee need not disclose the nature of the disability to the employer.²² Similar rules apply to communications with prospective employees; employers cannot ask "questions likely to elicit information about a disability," but can inquire "whether the applicant can perform the essential functions of the job."²³ If an applicant requests accommodation, or the employer reasonably believes that the applicant might require accommodation, the employer "may make limited inquiries regarding such reasonable accommodation."²⁴

If "the disability or the need for accommodation is not obvious," the employer may request medical documentation from the employee to "confirm[] the existence of the disability and the need for reasonable accommodation."²⁵ For this reason, input from healthcare providers about an employee's ability to perform a job and recommended accommodations to make that possible often are forwarded to the employer by the employee as part of the interactive process. As California's Department of Fair Employment and Housing (DFEH) explains, "[t]he point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation."²⁶ Although no specific forms must be used during the interactive process, the DFEH offers a sample Request for Reasonable Accommodation packet that includes a certification to be completed by the employee's healthcare provider.²⁷ The DFEH form asks that the doctor: verify "that the employee has a disability"; indicate to what extent the employee may be unable to perform specific job functions, and for how long; and recommend "specific reasonable accommodation(s)."²⁸

If the documentation submitted by an employee "does not specify the existence of a FEHA disability and explain the need for reasonable accommodation," the employer may inform the employee that the documentation is insufficient.²⁹ In that case, the employer should "explain why" the submission is inadequate and provide the employee "an opportunity to provide supplemental information in a timely manner."³⁰ If documentation from the employee "does not support any reasonable accommodation, no reasonable accommodation need be required," but any later provided documentation must be reviewed.³¹

The employer should not, at any point during the interactive process, "ask [] about the underlying medical cause of the [employee's] disability."³² The employer "may make disability-related inquiries," however, "so long as the inquiries are both job-related and consistent with business necessity."³³ An employee's "mental or physical inability to engage in the interactive process" does not breach either the employees or the employer's obligation to engage in the required interactive process.³⁴ If an employee is unable to participate in the interactive process "because of the disability or other circumstances, his or her representative" may communicate with the employer on the employee's behalf.³⁵

LEAVES

If an employee's healthcare provider indicates that the employee is wholly unable to work, with or without accommodations, the employer can assume, in the absence of any contradictory evidence, that there are no accommodations (other than providing leave) that must be offered.³⁶ Providing leave "may be a reasonable accommodation" under FEHA for an employee who "needs time away from the job for treatment and recovery," if "the leave is likely to be effective in allowing the employee to return to work at the end of the leave."³⁷ Granting leave also may be required under the Family Medical Leave Act (FMLA), the California Family Rights Act (FMLA), Pregnancy Disability Leave (PDL) or other laws.³⁸ The analysis is more complicated, however, when a healthcare provider...