“Informal accommodations” are worth the paper they are printed on

Many American employees are discovering this as they attempt to continue working from home while their employers are trying to force them back into the office

In an earlier article, I wrote about how mental health conditions have to be accommodated like any other disability.

Immediately my inbox was flooded with people telling me their stories, with most of the stories falling into one of three categories:

1. Employers trying to force employees to produce documentation of their medical conditions after years of allowing them to work from home.
2. Employees asking about the legality of being required to produce medical documentation to support their inability to receive COVID vaccines.
3. Employees asking how often they can be asked to re-prove a medical condition.

Here are my personal thoughts (not my employer’s thoughts) on these topics. Note, this is NOT legal advice.

My definition of an informal accommodation is one where a manager has immediately agreed to an employee’s accommodation request without going through the full reasonable accommodations review / interactive process, which typically involves a representative from Human Resources. That means the accommodation isn’t officially documented anywhere, though parts of it may be captured in email.

Initially, informal accommodations appear to be easier for everyone.

• The manager believes the employee and thinks the accommodations request is reasonable.
• The employee is happy because they got what they were asking for with a minimum of fuss and no expensive trips to the doctor.
• Honestly, most people don’t like involving HR in *anything* unless they have to.

However, the employee is not out of the woods. Problems can arise in one of the two following situations:

• The manager changes, and the new manager either doesn’t like the accommodation or wants to do everything by the book. Happens all the time. Once, I had my manager change five times within a single job in less than two years.
• The employer’s rules change. Someone above the manager in the corporate food chain decides the employer can’t have managers making individual arrangements regarding accommodations that circumvent HR.

Then what happens?

1. The employee is almost always asked to produce medical documentation of the need for the accommodation.
2. For many reasons, the employee may not be excited about the request to provide medical documentation. This is especially true for mental health conditions.

Even though it may seem like a nuisance, the only way to ensure that your accommodation survives either managerial or employer rule changes is to go through the formal accommodations process with HR

Technically, employers are allowed to ask for medical documentation IF the disability is not obvious. The EEOC states:

Disability-related inquiries and medical examinations that follow up on a request for reasonable accommodation when the disability or need for accommodation is not known or obvious also may be job-related and consistent with business necessity.

If you have received an informal accommodation for years, I would suggest that does make your disability “known.” Obvious doesn’t mean visible in this particular case; it means understood. Is it a “business necessity” (another part of the EEOC requirement) for an employer to continue providing something they already provide? My answer to that question is almost always no.

What about COVID?

That question is a little bit trickier. Part of the analysis likely depends on the type of accommodation being requested — is the employee requesting WFH, or is the employee requesting to come into the office unvaccinated? At least one court has already determined that employees who refuse to get vaccinated can be fired. However, that particular case was in the healthcare setting. What about jobs that are not related to healthcare or public safety? There are several possible permutations of this:

1. The employee has a disability, and the COVID vaccine is contraindicated.

Even if the employee already has an accommodation for their existing disability, unless the documentation specifically calls out “no vaccination allowed,” which is unlikely at this point in the pandemic, it is probably legitimate for the employer to request updated recommendations.

2. The employee doesn’t consider themselves disabled but has a legitimate medical recommendation not to be vaccinated.

One of the things that triggers ADA protection is having a disability. The employee and their medical care provider may want to rethink whether the inability to receive a COVID vaccine presents a limitation to major life activities.

3. The employee is concerned that their vaccination could threaten a different member of their family.

Another thing that triggers some ADA protection is having a relationship or association with an individual with a disability. However, the ADA does not require employers to provide reasonable accommodations to non-disabled employees related to or associated with a person with a disability. While you can’t get an accommodation to avoid exposing a family member with a disability to COVID, you may be entitled to some leave. If your employer denies your leave request when leave is allowed for other reasons, the ADA can be brought in through its “association with an individual with a disability” component. However, only the leave discrimination is actionable, not the failure to provide an accommodation.

HR keeps asking me to re-prove my disability over and over (and over)

I’ve lost track of how many times this has happened to me personally. It is aggravating, to say the least, not to mention time-consuming and expensive.

• The best way to avoid this is to ask your medical service provider to indicate on their original note what the timeframe is for the disability, extending it as needed.
• If the disability is permanent and/or improvement is not anticipated, the medical documentation should indicate that.

If there is no time frame indicated on the letter, the employer may request an update because there is ostensibly a legitimate business necessity behind the request.

Your employer may NOT ask for an annual updated medical report for an accommodation granted for a permanent condition. There is no legitimate business purpose for such a request. That doesn’t mean that you are entitled to receive the identical accommodation forever. An employer can always claim the accommodation became an undue burden when it wasn’t to start with if corporate finances change or expenses associated with the accommodation increase drastically. However, an employer should start a conversation with the employee before changing or terminating an accommodation.

What are my options if HR and I disagree?

There is a great deal of information available online that might help you break through the logjam.

• The EEOC has a lot of data in question and answer format written in somewhat clear language.
• AskJAN (Job Accommodations Network) also has a lot of info online, most of which points directly to the relevant EEOC commentary.

Search the internet for data about your situation in abstract terms. For example, use the search phrase EEOC disability recertification, don’t mention a specific disability, and you should get several relevant results from reputable sources.

If the results match your opinion, forward the links to HR with the request to forward to the corporate labor attorney.

One final note is that it is crucial to keep detailed notes about each discussion you have with individuals about your accommodation. Even if you meet with someone by teleconference or phone, you can always email a “meeting summary” to the person you met with, indicating *your* understanding of the meeting and giving them the opportunity by email to correct any misunderstanding. That way, if you are left with no other option than to file a complaint with the EEOC or your state equivalent, you can prove that you attempted to engage with your employer interactively and that they are the bad actors in your case.