Scholar calls for employers to adopt hands-off policies when accommodating employees with disabilities.
As the COVID-19 pandemic drove people inside, many workers brought their workplaces with them. The switch to remote work also opened up opportunities for many people with disabilities. In fact, 83 percent of remote workers with a chronic illness or disability have reported that they were able to find work during the pandemic precisely because of remote working arrangements.
This unexpected silver lining of the pandemic raises a question: Why was remote work not previously available as an option for more workers with disabilities?
Under the Americans with Disabilities Act (ADA), employers must provide “reasonable accommodations” to employees with disabilities if doing so does not disproportionately burden the employer. The Equal Employment Opportunity Commission (EEOC), the agency tasked with enforcing the ADA, has long stated that remote work may be a form of reasonable accommodation. Yet before the pandemic, employers often denied their employees the option to telework.
In a recent article, disability scholar and advocate Katherine MacFarlane argues that the EEOC’s current process for assessing reasonable accommodations under the ADA unfairly burdens individuals with disabilities and should be reconsidered.
MacFarlane explains that the ADA was designed to embrace a “social model of disability,” a framework that promotes the idea that disability is based on how well someone fits into established institutions and structures, rather than any intrinsic differences in ability. According to MacFarlane, the drafters of the ADA emphasized the idea that an employee’s preferences, knowledge, and experience should drive the accommodations process. Under the social model of disability, an employee could conceivably gain an accommodation to work from home by merely explaining that this practice would be more accessible to them given their past experience.
This approach expressly rejects the medical model of disability, which emphasizes formal diagnoses and treatment—and prioritizes “fixing” a person with a disability, rather than empowering people who do not fit society’s definition of “normal.” Neither the ADA, nor the EEOC’s initial regulations implementing it, require employees to provide medical documentation of disability at any point during the process. This choice showed that the ADA is designed to focus on an employee’s own experiences, rather than the advice of a physician.
But in the thirty years since the ADA’s enactment, the EEOC’s application of the accommodations process has shifted significantly away from the statutory emphasis on employees’ experiences.
Current guidance endorses a medical model of disability by allowing employers to request documentation if the disability or the need for accommodation is not well known. Employees may be denied accommodation if they fail to provide the requested information. Courts rely heavily on doctors’ assessments of disability, underscoring what MacFarlane describes as a belief that “a failure to provide medical documentation of disability is suggestive of disability fraud.” As a result, many employers require medical documentation as a prerequisite to any kind of accommodation.
This documentation-heavy approach, MacFarlane argues, is “punitive, adversarial, and humiliating,” and it excludes people with disabilities from conversations about their own needs and identities. Under this approach, an employee must provide medical documentation not only to prove that they have a disability, but to explicitly justify that their requested accommodation is necessary. MacFarlane also contends that requiring documentation disproportionately harms members of marginalized communities, who may find it difficult to discuss their disability with a doctor—let alone obtain the specific paperwork that they need.
Such an approach, according to MacFarlane, betrays the ideals of its drafters by prioritizing medical professionals instead of the individuals affected by their own disabilities.
Alternatively, MacFarlane argues that the rules for seeking disability accommodations should resemble other EEOC rules for seeking religious accommodations.
According to an EEOC guidance on religious discrimination, employers must accommodate their employees’ sincerely held religious beliefs unless doing so would impose undue hardship on the company. In general, employers must assume that an employee’s request is legitimate because an employer is less familiar with the belief than their employee is. Employees may sincerely hold beliefs that are unique to them and that differ from others who practice the same faith.
The EEOC recognizes that an individual’s religious beliefs may change over time, and so the fact that an employee adopts a new belief or inconsistently practices an old one is not a reason to doubt their sincerity. Employers may only request proof of an employee’s belief if there is a legitimate cause for doubt. This proof may take any form, from any person—it does not need to come from a clergy member.
MacFarlane proposes that employers should use this hands-off approach in the disability context as well and for the same reasons. There is no one way to experience a disability, just as there is no one way to practice a faith.
MacFarlane argues that a disability should receive legal protection even if it is not well understood by the employer. Just as a practitioner with an unusual faith does not need to justify their beliefs, employees with disabilities should not be forced to prove their lived experiences with medical documentation.
MacFarlane acknowledges that one challenge arising from her proposal would be the deeply-entrenched notion that people lie about their disabilities. But employees may just as easily lie about their religious beliefs, MacFarlane explains. Indeed, the EEOC’s guidance accounts for dishonesty by enabling employers to ask for documentation if the timing of a request renders it suspect.
Adopting a more hands-off approach to disability accommodation, writes MacFarlane, would benefit employers as well as their employees. According to the U.S. Department of Labor, over half of workplace accommodations cost nothing to implement, and the rest cost an average of $500. MacFarlane argues that removing the need for documentation would benefit employers by saving them the time and expense needed to collect and review medical records.
Only when employers stop requiring medical documentation to accommodate employees with disabilities can the accommodations process live up to the vision espoused by the drafters of the ADA, MacFarlane concludes.