Can an employee receive a workplace accommodation without disclosing the employee’s medical condition? The answer, as with so many seemingly “simple” legal questions, is that it depends.

Policies Can Be Broader than Laws

An organization can certainly adopt a policy that considers and grants accommodation requests based simply on whether they are reasonable, irrespective of whether they are prompted by a legally-protected reason. Under such a policy, potentially any employee would be able to submit a request for an accommodation that the employee believes would better enable the employee to perform job responsibilities, and it would be considered without question as to the underlying concern.

For example, some organizations will offer an ergonomic keyboard to any employee who requests one, even if the employee does not have a medical need for that accommodation, on the theory that, if it helps employees work more efficiently and avoid future injury, then that more than offsets the expense. I have known organizations to approve varied types of headsets, ergonomic assessments of an employee’s office setup, and the purchase of a sit/stand desk under a similar rationale.

Organizations also may permit employees to flex their work schedules or even work remotely some or all days of the week, and that too is a form of accommodation. While many such arrangements were necessitated by workspace closings during COVID, they endured well beyond that emergency situation.

Employers that now mandate full-time return to the office are receiving a range of employee documentation, sometimes rather contorted and questionable, to support a medical need for continued remote work. That documentation is a testament to how much employees see value in such arrangements even where they are not legally entitled to a reasonable accommodation. The current return to office initiative also serves as a stark reminder to employees that accommodations granted by employers simply as a beneficial policy can be rolled back at any time. The nature of at-will employment means that, absent a legally-protected right to the accommodation, an employee’s only option is to find a job working for a different employer.

Federal Laws Entitle Some Employees to Consideration of Accommodation Requests

The law does require an employer to consider all these examples and other types of requests for a reasonable accommodation in limited circumstances.

• The Americans with Disabilities Act (ADA) requires reasonable accommodation for individuals with disabilities.
• The Pregnant Workers Fairness Act (PWFA) requires reasonable accommodation for pregnant employees.
• The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) requires specific accommodations for nursing mothers.
• Title VII of the Civil Rights Act of 1964 requires reasonable accommodation for individuals based on religious practices.

State and local laws may broaden these accommodation obligations (e.g., some define who is “disabled” more broadly than the ADA or require a broader range of accommodations than the PWFA and PUMP Act). Some states and localities also require additional categories of accommodations, such as for victims of domestic violence, sexual violence, or other serious crimes.

Disclosing Diagnosis vs. Disclosing Medical Condition

Under the ADA, Title VII and the PWFA, employers are generally permitted to request documentation from a healthcare provider or similarly applicable authority (for religious accommodations) to substantiate the need for a requested accommodation.  Notably under the ADA, employers are not permitted to seek an employee’s medical diagnosis, but rather substantiation from a healthcare provider that the employee meets the legal definition of an individual with a disability.

What is the difference?  The documentation may indicate, for example, that the employee has a back condition that restricts mobility or how much weight an employee can lift. The documentation should not indicate if the back condition is the result of a herniated disk, a spinal condition, or some other medical cause.  The Equal Employment Opportunity Commission speaks more to the types of permissible inquiries in its Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA.

Best Practice for Employers

It is a recommended best practice for employers consistently to request medical documentation in this context, and to follow a consistent process for evaluating such requests. Without that formality and consistency, the granting of requests for accommodation may turn on the whimsy of individual managers, who often are unfamiliar with the legal parameters of this process.

Too often, I have seen managers show leniency for an employee they trust and value without any formal accommodation.  The problem with this approach arises later, for example:

• the manager becomes frustrated that the employee’s performance is no longer stellar, and then faces challenges managing those issues while determining whether and how the manager can scale back the previously-approved informal accommodations; or
• the manager leaves and a new manager is presented with an employee who feels entitled to certain accommodations that no one else in the organization was aware had been provided and that may not align with the needs of the organization.

In each of these situations, if a consistent process had been followed, those challenges (which can easily morph into legal claims) are averted.

By Tracey I. Levy