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Ohio Top Disability Discrimination Attorney Answer: Is it legal for my employer to require a medical documentation before employees can take sick leave? What should I do if my boss is challenging whether I have a disability and asking a lot of questions about me being disabled? What type of lawyer to I need to sue my employer to get a disability accommodation at work?

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As our employment discrimination attorneys have previously discussed, the Americans with Disabilities Act (“ADA“) protects employees who have a physical or mental impairment that substantially limits major life activities or an employer treats an employee adversely because they believe the employee suffers from a mental or physical disability. (See Spitz Law Firm Video on Disability Discrimination; Top Disability Discrimination Lawyer Reply: How Do I Get A Disability Accommodation At Work?). Further, our employment lawyers have blogged about the ADA’s requirement for employers to provide reasonable work accommodations to employees that have a disability, which may include medical leave from work. (See Disability Discrimination: Medical Leave Can Be A Reasonable Accommodation Under The ADA; How Long Must An Employer Give For Medical Leave?; and Top Disability Discrimination Lawyer Reply: Can I Bring A Service Dog To Work As A Disability Accommodation Under The ADA?).

Many employers request a doctor’s note from an employee who suffers from an illness that requires them to be absent from work for an extended amount of time or for any absences that are requested under the sick leave policy. The ADA prohibits an employer from requiring medical examinations or inquiries of an employee to ascertain whether or not the employee is an individual with a disability unless they can show a job-related business necessity. However, it is very critical to note that while the ADA does not allow employers to always ask for a doctor’s note, the Family Medical Leave Act (“FMLA”) does, at least initially. (See Top FMLA Lawyer Reply: Can My Boss Require A Doctor’s Note For Each Intermittent FMLA Leave?; and Can My Employer Require A Second Opinion Before Giving Me FMLA? I Need A Lawyer!). But, there are circumstances where an employee is asking for medical leave without asking for FMLA leave – such as when the employee has sick time or vacation time that he or she wants to use, or when then employee or employer does not qualify for FMLA (See Are All Employees Eligible For FMLA Leave? Best Employment Lawyer Reply!; and Top FMLA Lawyer Reply: Am I Eligible For Medical Leave From My Job?). For the purpose of this discussion, our employment discrimination lawyers are focusing on ADA requirements without a request for FMLA.

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So, with that build up, let’s look at an ADA example. In Conroy v. New York State, the United States Second Circuit Court of Appeals overturned a trial court entry of summary judgment (dismissal of the disability discrimination lawsuit) granted to the employer when it decided that the employer’s requirement of a doctor’s note with a general diagnosis violated the ADA’s prohibition against inquiries that reveal ADA protected disabilities.

In that case, the employer was DOCS, which is the New York agency that maintains correctional facilities. DOCS, the employer, had a policy that it called the DOCS Sick Leave Directive. Under certain scenarios, the Sick Leave Directive mandated that employees provide medical documentation when they come back to work after using sick time. According to the Sick Leave Directive, the documents needed to contain a brief general diagnosis that is “sufficiently informative as to allow [the employer] to make a determination concerning the employee’s entitlement to leave or to evaluate the need to have an employee examined by [the Employee Health Service] prior to returning to duty.” While medical documentation or a doctor’s note was not typically required for absences of three days or less, the Sick Leave Directive stated that: “In exceptional cases, a supervisor may exercise the right to request certification for any absence charged to sick leave or family sick leave regardless of duration.” Additionally, the Sick Leave Directive then points to the Controlling Unexcused and Unauthorized Absences Directive, which provides: “Medical certification may be required of any employee who requests to charge an absence to sick leave credits.” In addition to these directives, the employer sent out a memo to the employees that stated that when an employee is perceived to have an attendance problem, the supervisor with have informal discussions to correct the problem, followed by a formal discussion with the employee, which would include making employee provide medical documentation for all future absences regardless of the duration of the illness.

The court held in its decision that “Even where a diagnosis alone is not sufficient to establish that an employee is disabled, the diagnosis may give rise to the perception of a disability, and discrimination on the basis of a perceived disability is also prohibited by the ADA.”

Next, the court tackled the employer’s business necessity defense:

The Ninth Circuit has held that the “[t]he business necessity standard is quite high, and is not [to be] confused with mere expediency.” Cripe v. City of San Jose, 261 F.3d 877, 890 (9th Cir.2001) (internal quotation marks omitted); see also Tice v. Centre Area Transp. Auth., 247 F.3d 506, 515 (3d Cir.2001) (“an examination that is `job related’ and `consistent with business necessity’ must, at minimum, be limited to an evaluation of the employee’s condition only to the extent necessary under the circumstances to establish the employee’s fitness for the work at issue”); Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 811 (6th Cir.1999) (“for an employer’s request for an exam to be upheld, there must be significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job”).

We endorse the views of the Ninth Circuit and hold that in proving a business necessity, an employer must show more than that its inquiry is consistent with “mere expediency.” An employer cannot simply demonstrate that an inquiry is convenient or beneficial to its business. Instead, the employer must first show that the asserted “business necessity” is vital to the business. For example, business necessities may include ensuring that the workplace is safe and secure or cutting down on egregious absenteeism. The employer must also show that the examination or inquiry genuinely serves the asserted business necessity and that the request is no broader or more intrusive than necessary. The employer need not show that the examination or inquiry is the only way of achieving a business necessity, but the examination or inquiry must be a reasonably effective method of achieving the employer’s goal.

Employers are still allowed to ask general wellness questions such as “how are you doing today” or “are you well enough to work today?” However, if your boss begins to ask questions such as what forms of medication are you using or what type of illnesses you are suffering from, you may be at the receiving end of an inquiry that is unlawful under the ADA.

Having to live with a disability is difficult enough without worrying about the effect it may have on your job. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. Call our Ohio employment law attorneys at 866-797-6040. The best option is not to wait. The Spitz Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.

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