EEOC Criticizes Sample ADA Reasonable Accommodation Policy in Informal Guidance

On May 5, 2014, the Equal Employment Opportunity Commission (EEOC) published an informal guidance letter drafted by Associate Legal Counsel Peggy Mastroianni in response to a question about a sample Americans with Disabilities Act (ADA) reasonable accommodation policy. The policy was prepared by a law firm and posted on the website of an unidentified state agency. It purported to provide guidelines on reasonable accommodation for employees of the adopting company. The submission also included a sample “Request for Accommodation Questionnaire” and a sample “Health Care Provider Questionnaire.”

The EEOC’s response was highly critical of all three documents. Mastroianni reiterated the EEOC’s firmly held position that fixed policies and guidelines on reasonable accommodation are troublesome, and that employers must always use an individualized assessment through the interactive process to identify a reasonable accommodation for a particular employee’s disability. The letter also discussed problems with certain inquiries on both questionnaires. Among other issues, the questionnaires contained inquiries that requested more information than permitted by the ADA, such as details of the employee’s treatment plan. The EEOC conceded that this information may be necessary in certain circumstances to determine whether an employee is disabled, but said that a form questionnaire routinely asking for this information regardless of individual circumstances is impermissible.

This guidance highlights that it is essential for employers to carefully review sample policies and forms before using them, especially if they are obtained from public websites. In this case, the source of the materials was a state agency. The person making the inquiry in this case was likely a well-meaning employer who thought the materials were reliable, given the source. Unfortunately, if this policy and these forms were used without customization, the employer could be liable if an employee filed an ADA claim with the EEOC.

Click here for the full text of the letter, and contact MSEC for assistance drafting customized ADA medical inquiries.