Making Accommodations for Disabled Employees - and Not (Fall 2005)
Mary Margaret (“the world’s most excellent canine,” a title coined by, and insisted on, by Miss Mary Margaret, herself), has told me that her duties as watchpooch are no longer possible. She can no longer spend several minutes each night watching out windows or sniffing doors to ensure that Usama Bin Laden (or Osama whatever) is not out there, because she has a disability: She has, according to her, Sleep Deprivation Syndrome (SDS), which invariably occurs when a Lab does not get a minimum of 20 hours of sleep per day. I’m thinking about doing a telethon.

There are lots of employees, and potential employees, who have some sort of disability and who are as capable as any of your non-disabled employees (or potential employees). They can do the job, whatever it might be, as well as, or better than, your non-disabled employees, sometimes with some type of accommodation for the disability, and sometimes without that accommodation.

We’re not talking about those folks. Those folks are the same as your non-disabled employees, in that they do good work, and we love them. We’re talking about something else here.

Everyone knows that doctors (along with most other people) are, well, less than fond of lawyers. What is not as well known is that lawyers don’t buy into that whole doctor-as-god thing. Doctors have a better PR machine. ( Just watch “ER,” as compared to, say, “Boston Legal.”). Most folks think that lawyers will say anything for their clients. (Not so. So there.) But doctors can tell some whoppers, and they usually put them in writing to an employer, on behalf of a patient.

So, over the years, it has become seemingly more frequent that we get notes from employees’ physicians, telling us that our employee can’t do a certain thing, often a thing that the employee has repeatedly complained about having to do. For example, my favorite was a note from a doctor that said that the employee was unable to do some work (that he already had told everyone within earshot that he didn’t want to do) because of a “medical illness.” Another said that the employee couldn’t stand for more than about 8 hours per day, “at certain times during the month.” That, also, was designed to take the employee out of some undesirable task. I guess they’re just trying to help, but some of these doctors’ notes appear to be written by the patient.

The laws that are implicated in these situations are, usually, Section 504 of the Rehabilitation Act, which prohibits discrimination on the basis of disability in any “program” which receives federal funds; and/or the Americans with Disabilities Act (ADA), which prohibits discrimination against the disabled, generally. Usually, the review of the situation is the same for both: The employee cannot be dismissed, or otherwise harmed, if he can perform “the essential functions of the job,” and he must be able to perform those essential functions “with or without reasonable accommodations.”

The first thing you need to look at is what the “essential functions” of a job are. For, say, a principal, they include things like dealing with discipline, visiting the classrooms, evaluating employees, etc. You should have a job description which can help you with this. Next, what is a reasonable accommodation? That’s usually the big question.

Ordinarily, and in general terms, it’s some, relatively minor, change in the job which enables the employee to do the job. Sometimes, you can even eliminate some functions of the job, if those functions aren’t “essential.”

However, what you are not obligated to do is to hire someone else to do a job function which is, indeed, essential. For example, if a principal can’t do evaluations; or if he can’t tolerate stress, then he’s not able to carry out the essential functions of the job. You don’t have to hire someone else, at thousands of dollars per year, to do the evaluations that the principal’s doctor says he can’t do. And if you can figure out how to eliminate stress from any job, please let me know. In other words, it is not a “reasonable accommodation” to hire someone to do the job for your employee. If he can’t do the essential functions of the job, then it’s not discrimination to dismiss the employee or to refuse to hire him in the first place.

In short, look at the doctor’s note with a jaundiced eye, or at least be skeptical. When the employee’s malady is, according to the doctor, some general affliction (remember “medical illness”?), or if the note is just inadequate, ask for more information, from the employee and from the physician. You might have to insist that, unless more information is forthcoming (or if the information produced is not adequate), the employee will have to do the job. Or you might have to dismiss him.

As for Mary Margaret, I have a feeling that her problem will vanish about the time that I inform her that Milk Bones are only for active-duty watchpooches. Medical miracles do happen, you know. Besides, she didn’t even give me a note from her vet.

Previous Article (Summer 2005)- Child Abuse Investigators: "Let 'em in"
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