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Labor Law: Employer have rights to the required medical documentation for those seeking a vaccine exemption due to a disability
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Labor Law

Labor Law: Employer have rights to the required medical documentation for those seeking a vaccine exemption due to a disability

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20150817_MBZ_KAREN

RTD Metro Business law columnist, Karen Michael.

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What can be requested from workers seeking a vaccine exemption because of a disability?

It is an important question to ask these days.

For instance, is it sufficient for a worker to present to his employer medical documentation from a health care provider that simply states, “I have been treating Fred for diabetes and as a result of his medical condition, he cannot be vaccinated against COVID-19 based on the current vaccines available.”

Companies can seek “reasonable documentation” to support a request for reasonable accommodation when the disability and/or need for an accommodation is not obvious, according to the Equal Employment Opportunity Commission’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act.

Employers are entitled to know that the worker has a covered disability for which an accommodation is needed.

The business can obtain only enough information necessary to establish that the person has a disability and the disability necessitates an accommodation. The documentation should come from an “appropriate professional” to include doctors, nurses, mental health professionals or other clinical workers.

Generally, a “doctor’s note,” like the one cited above, may not be adequate.

In seeking documentation, the EEOC suggests that employers specify what types of information they are seeking regarding the disability, its functional limitations and the need for a reasonable accommodation. For example, it would be to help the employer understand the reason diabetes prevents the individual from getting vaccinated.

The guidance also states an employee can be asked to sign a limited release giving the employer the opportunity to submit a list of specific questions to the medical provider.

In the alternative, employers also can simply discuss with the employee the nature of the disability and functional limitations and accommodations needed. However, employers should implement a consistent process.

If a worker requests an exemption from taking the vaccine because of high blood pressure, for example, the company can ask the employee for reasonable documentation about the impairment, including the “nature, severity, and duration of the impairment; the activity or activities that the impairment limits; and the extent to which the impairment limits the employee’s ability to perform the activity or activities.”

If an employee provides insufficient documentation, the company can require that the worker go to a health care professional of the employer’s choice to substantiate that the person has an ADA disability and needs a reasonable accommodation.

The company should explain why the documentation is insufficient and provide the employee an opportunity to submit the missing information in a timely manner prior to sending the worker to another physician. According to the EEOC’s guidance, “Documentation is insufficient if it does not specify the existence of an ADA disability and explain the need for reasonable accommodation.”

Any medical examination conducted by the employer’s health professional must be limited to determining the existence of an ADA disability and the functional limitations that require reasonable accommodation. All costs associated with the referral to a medical provider following insufficient documentation must be paid by the company.

While every medical situation and individual is unique, there have been relatively few widely reported medical reasons that may justify a medical exemption.

However, companies need to rely upon the employee’s own health care professional, not managers or HR professionals, in evaluating whether a medical exemption is warranted.

Businesses also should assume that all employees, and medical professionals, are providing the information in good faith unless the employer has information to the contrary.

For every accommodation request, employers must engage in the interactive process to evaluate the requested accommodation as well as determining alternatives to the accommodation that may be effective.

Some United Airlines employees who were placed on leave as an accommodation have now sued the airline claiming that the accommodation, offered by the airline as a leave of absence, amounted to a termination.

Employers should carefully weigh all options and alternatives in providing the accommodation and document all decisions.

Karen Michael is an attorney with Richmond-based KarenMichael PLC and author of “Stay Hired.” She can be reached at kmichael@karenmichaelconsulting.com or stayhired@stayhired.net.

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