A belief-based approach to workplace accommodations

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Researcher calls on employers to adopt hands-off policies when hiring employees with disabilities.

As the COVID-19 pandemic has pushed people indoors, many workers have brought their workplaces with them. The shift to remote working has also opened up opportunities for many people with disabilities. In fact, 83% of remote workers with a chronic illness or disability said they were able to find work during the pandemic specifically. because 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 it does not disproportionately burden the employer. The Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing the ADA, has long said that remote work can be a form of reasonable accommodation. Yet before the pandemic, employers often denied their employees the ability to telecommute.

In a recent article, Katherine MacFarlane, a disability scholar and attorney, argues that the EEOC’s current process for assessing reasonable accommodations under the ADA unfairly burdens people with disabilities and should be reconsidered.

MacFarlane explains that the ADA was designed to adopt a “social model of disability,” a framework that promotes the idea that disability is based on how well a person fits into established institutions and structures, rather than on intrinsic differences in capacity. According to MacFarlane, the drafters of the ADA emphasized the idea that an employee’s preferences, knowledge and experience should guide the accommodation process. Under the social model of disability, an employee could potentially obtain an accommodation to work from home by simply 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 treatments, and prioritizes “fixing” a disabled person, rather than empowering those who do not fit. not to society’s definition of “normal”. Neither the ADA, nor the original EEOC regulations implementing it, require employees to provide medical documentation of disability at any point in the process. This choice showed that the ADA is designed to focus on an employee’s own experiences, rather than the advice of a doctor.

But in the thirty years since the ADA’s enactment, the EEOC’s application of the accommodation process has moved significantly away from the law’s focus on employee experiences.

Current guidelines support a medical model of disability by allowing employers to request documentation if the disability or need for accommodation is not well known. Employees may be denied accommodation if they do not provide the requested information. Courts rely heavily on physicians’ assessments of disability, pointing to what MacFarlane describes as a belief that “failure to provide medical documentation of disability is suggestive of disability fraud. “. As a result, many employers require medical documentation as a prerequisite for any type of accommodation.

According to MacFarlane, this documentation-based approach is “punitive, accusatory 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 they have a disability, but to explicitly substantiate that the requested accommodation is necessary. MacFarlane also argues that the documentation requirement disproportionately harms members of marginalized communities, who may find it difficult to discuss their disability with a doctor, let alone obtain the specific documentation they need.

Such an approach, according to MacFarlane, betrays the ideals of its editors by prioritizing medical professionals over people 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 guideline on religious discrimination, employers must consider the sincere religious beliefs of their employees, unless doing so would impose an 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 creed than their employee. Employees may sincerely hold beliefs of their own 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 no reason to doubt their sincerity. Employers can only ask for proof of an employee’s belief if there is a legitimate cause for doubt. This evidence can take any form, from any person – it does not have to come from a member of the clergy.

MacFarlane suggests that employers also use this hands-off approach in the context of disability and for the same reasons. There is no one way to experience disability, just as there is no one way to practice faith.

MacFarlane argues that a disability should have legal protection even if it is not well understood by the employer. Just as a practitioner with unusual faith need not justify their beliefs, employees with disabilities should not be required to prove their lived experiences with medical documentation.

MacFarlane acknowledges that one of the challenges arising from his proposal would be the deeply ingrained notion that people lie about their disability. But employees can just as easily lie about their religious beliefs, MacFarlane says. Indeed, EEOC guidelines explain dishonesty by allowing employers to request documents if the timing of a request makes it suspicious.

Taking a more passive approach to accommodating people with disabilities, writes MacFarlane, would benefit employers as well as their employees. According to the US Department of Labor, more than 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 of collecting and reviewing medical records.

Only when employers stop requiring medical documentation to accommodate employees with disabilities can the accommodation process live up to the vision espoused by ADA drafters, MacFarlane concludes.

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