More ADA: Interactive Process?

After I submitted my request for an accommodation under the ADA[n.1], the generic DHS[n.2] ADA email address sent a response. I'm not going to post it, but it was clearly the canned, copy/paste response they probably send to everyone.

They asked me to fill out a form, in which I basically copy/pasted my request in the spots that fit the checkbox questions. They also "asked" me to either give them a medical authorization, or send a letter to my healthcare provider asking documentation. They also "asked" me to give them my position description, which they already have, because they created it.

I sent a response, which I'm sharing below. Both my initial request and my response have some of the references for my thoughts in this post.

My request was (much) more than enough to trigger DCYF's obligations under the ADA. If I'd just told my supervisor, "Working in the office is going to be really hard because of my mental health conditions. Is there any way I can keep working from home like I have been?" that would have been enough.

DCYF didn't need me to fill out DHS' form, from a legal or practical perspective. My request was already a "real" request for an ADA accommodation. Filling out the form didn't give them any information they didn't already have.

DCYF didn't need me to give them a medical authorization or documentation from my healthcare provider. DCYF didn't even need the documentation I gave them, which as the list of health conditions from MyChart and my active prescriptions from my pharmacy's online portal. I'd already given them my diagnoses in my initial request:

"I live with mental illness, including Anxiety Disorder, Major Depressive Disorder, Obsessive Compulsive Disorder, and Attention Deficit Hyperactivity Disorder. Each condition was diagnosed by medical professionals (MDs, PsyDs, and LNPs), I had hundreds of hours of therapy in less than a year, and I take at least five different prescription medications for these conditions (sometimes more)."

They could have accepted that. DCYF doesn't have to get documented proof, even if they can. Arguably, because its "obvious" that I have a disability and need accommodation, they can't ask for medical documentation.

Is DCYF worried that I might have made that all up? If DCYF thinks that's even remotely a risk, the agency should re-evaluate my position. As an attorney, and especially as the only Contracts Attorney in the agency, I have a lot of discretion, I exercise a lot of judgment, I access sensitive information. If DCYF doesn't trust me to be honest about my employment with DCYF, it probably shouldn't trust me as much as it does in my employment.

Of course, DCYF almost certainly doesn't think I made it up. DCYF is, probably, checking the boxes, dotting the "i"s, and crossing the "t"s.[n.3]

To be blunt, it's stupid.

DCYF will have to give me some kind of accommodation (even if not continued telework). I'm not going out on a limb here; this isn't a hard legal call. DCYF is making both of us jump through pointless hoops, which wastes their time. DCYF will need to deal with a lot of requests like mine. They should save their time and energy for the requests that aren't obvious.

Jumping through hoops is also contrary to the whole point of the ADA. When an employee requests an accommodation, the employee and employer are supposed to have an "interactive process" (or "interactive dialogue"). This lets them discuss in practical, real-world terms what they can both do so the qualified employee can do their best work.

DCYF didn't do this.

They sent my request (maybe without even reading it) to an ADA team at DHS. That team sent me (maybe without even reading my request) completely generic forms and "asked" for medical documentation they (arguably) aren't entitled to get. Asking for sensitive medical information, when the don't need it, can be employer retaliation.[n.4]

I CCd my supervisor when I sent my request to HR.[n.5] She responded in clear terms that she supports my request. A reasonable employer would probably have said, "Good enough."

Instead, we're using taxpayer resources so DCYF can jump through unnecessary hoops. If they're doing that with my request, they're probably doing it with all of them.

I'm not telling anyone they should make an accommodation request, but part of me hopes that every state agency gets "hammered" with similar requests. I want Governor Walz to reap what he sowed with his unilateral, ill-advised, one-size-fits-all decision to make us "return" to the office.

Here's the response I sent to the generic DHS ADA email (CCing my supervisor again):

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I won’t wait to provide information, and I know the [Interagency Agreement] between DCYF and DHS authorizes DHS to carry out some of DCYF’s functions. But can you please clarify the extent to which DHS is responsible for DCYF’s compliance with the ADA about my employment? I’m especially interested in which agency will engage in the interactive process, decide the amount of information they need, and ultimately decide whether and how to accommodate my disabilities.

I’ve attached:

• The completed Employee Reasonable Accommodation Request Form.

• My position description from September 27, 2024. This was before my transfer date to DCYF. I’m not sure if it is exactly the same in my current position.

• I don’t yet have medical documentation directly from my providers, so I’ve attached pdfs of the lists of health conditions and prescriptions as shown in the secure portals for my health provider and my pharmacy. I want to give you what I can right away because my request on Tuesday already “triggered” the EEOC’s recommendations about starting the interactive process.

I want to note that an employer isn’t required to request medical documentation. The EEOC notes:

The employer is entitled to know that an employee has a covered disability that requires a reasonable accommodation.(49) Thus, when the disability or the need for the accommodation is not known or obvious, it is job-related and consistent with business necessity for an employer to ask an employee for reasonable documentation about his/her disability and its functional limitations that require reasonable accommodation.

[note] 49. See Reasonable Accommodation Under the ADA, supra note 6, at 14-15, 8 FEP at 405:7608 for examples of other situations where employers may ask for documentation; see also id. at 16-17, 8 FEP at 405: 7609 for examples of situations in which an employer cannot ask for documentation in response to a request for reasonable accommodation.

(Emphasis by the EEOC.)

The EEOC also notes:

The Commission has previously stated that when an employee provides sufficient evidence of the existence of a disability and the need for reasonable accommodation, continued efforts by the employer to require that the individual provide more documentation and/or submit to a medical examination could be considered retaliation.(60) 

[note] 60. See Reasonable Accommodation Under the ADA, supra note 6, at 15 (n.30), 8 FEP at 405:7609.

The Job Accommodation Network (JAN) is a service of the U.S. Department of Labor’s Office of Disability Employment Policy/ODEP (#OD-38028-22-75-4-54). JAN’s advice to employers suggests, “When the impairment and need for accommodation are known or obvious, consider focusing on gathering detailed information about the accommodation, rather than requesting unnecessary medical information.” JAN also suggests:

If the need for accommodation is apparent, talk to the individual about his or her specific needs. Discuss the type of accommodation (e.g., schedule modification, intermittent leave, work from home, work-related equipment, etc.) and how the individual believes the accommodation will enable him or her to perform job duties,[sic] or meet performance/conduct standards. If the need for accommodation is understood, the type of accommodation is clear, and a change can easily be implemented, then medical documentation regarding the need for accommodation may not be necessary.

(Emphasis by JAN.) And:

Remember, the ADA does not require employers to request medical information. Before asking, consider the impact the information will (or will not) have on effectively processing an accommodation request. The individual who requested the accommodation is often a good source of information about the disability and accommodations. If the individual cannot provide the necessary information, then medical documentation can be useful. The key is to only ask for information that is needed to process the accommodation request.

(Emphasis by JAN.)  See also A Flexible Approach to ADA Medical Documentation.

I wrote more about this in my first email, but I want to suggest that whomever (DCYF or DHS) makes the decision doesn’t need much more information. It would violate my ethical obligations as an attorney for DCYF to lie about my disabilities. My disabilities are of the kind that will “virtually always” create a substantial limitation on a major life activity, and both major depressive disorder and obsessive compulsive disorder should “easily be concluded” as being a substantial limitation on the major life activity of brain function. 29 C.F.R. § 1630.2(j)(3)(ii)-(iii).

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n.1 The "CYA" I included in that post applies. I'm not giving legal advice to anyone, even when I summarize law.

n.2 As I mentioned before, I don't work for DHS anymore. I work for DCYF, so most of my references to my employer will be to DCYF, because it's the agency that has obligations to me under the ADA.

n.3 I refuse to use what seems the common practice of writing i's and t's. I'm not using the possessive, and they aren't contractions. #pedantic

n.4 I'm not employment counsel for DCYF, but I spent part of my career as the only attorney at a company with over 200 employees. If that company had this situation and asked my legal opinion, I would have told them to stop, ignore whatever forms they had, and talk to the employee.

n.5 I did not have to include my supervisor. She has no right to know most of the information I shared. I included my supervisor because I respect her, and (frankly) because I wanted someone outside of HR as a "witness" to my communication.