Letter of restrictions for work

[NONuts]

I was  just given the info for this site. I am facing possible releases of contract at work due to my allergies. They said they only need to make "reasonable accommodations". I need to see a few temples of letters of restriction for work or schools so that I can meet with my allergist later today. Feeling very overwhelmed.

[twinturbo]

The standard for employment and postsecondary schools is "reasonable". It is not applicable to elementary or secondary schools where FAPE is required for mandatory ages.

That said what accommodations are they contesting if it is safe to answer? Where to file a complaint gets tricky. ADA is enforced by DOJ but there is overlap with EEOC. Either way I'll try to link to the regulations in a bit if no one gets to it before me.

[CMdeux]

Call DOJ.

Seriously-- you need technical assistance in order to understand what your rights are under the law.

They are obliged to make "necessary and reasonable" accommodations in policies, practices, and procedures where those do not impact the fundamental nature of the activities.   

Some employers may be held to an even higher standard if they are publicly funded in any way.

HTH.

[NONuts]

Thanks for your help, I feel lost. I am waiting for a call back from my union but not sure if they will be able to help. Trying to find out my rights.

[CMdeux]

With a little luck your union may be able to provide some legal assistance-- but I would not expect them to be very aware re: disability law and food allergy.  If anything, they may think that the ADAA doesn't protect you-- and it most certainly DOES.

[twinturbo]

There's a lot to all this but I'm attempting to put myself in your shoes to provide the first reader friendly entry.

I'd try the DOJ's ADA guide. It starts out with employment. I know a good deal of the federal regulations by heart but for reading sake start with the guide. You'll see under employment that complaints are sent to EEOC. Let's hold off on that for now because you are not yet wronged in the sense you're in the process of being wronged. I take this to mean whatever ridiculousness they plan on sending you in writing hasn't arrived yet?

Do you work in a public building and/or public entity? Or is it private? Definitely say if it's religious.

Title I requires employers with 15 or more employees to provide qualified individuals with disabilities an equal opportunity to benefit from the full range of employment-related opportunities available to others. For example, it prohibits discrimination in recruitment, hiring, promotions, training, pay, social activities, and other privileges of employment. It restricts questions that can be asked about an applicant's disability before a job offer is made, and it requires that employers make reasonable accommodation to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless it results in undue hardship. Religious entities with 15 or more employees are covered under title I.

Title I complaints must be filed with the U. S. Equal Employment Opportunity Commission (EEOC) within 180 days of the date of discrimination, or 300 days if the charge is filed with a designated State or local fair employment practice agency. Individuals may file a lawsuit in Federal court only after they receive a "right-to-sue" letter from the EEOC.

Charges of employment discrimination on the basis of disability may be filed at any U.S. Equal Employment Opportunity Commission field office. Field offices are located in 50 cities throughout the U.S. and are listed in most telephone directories under "U.S. Government." For the appropriate EEOC field office in your geographic area, contact:

(800) 669-4000 (voice)
(800) 669-6820 (TTY)

www.eeoc.gov

After the DOJ's ADA guide I'd segue into EEOC's guidance on Disability Discrimination. Don't ask me why the titled version has first letters capitalized. Anyhow, at the bottom is further resources. I think in the Venn diagram of department overlap that's the most targeted guidance on disability in employment reading for now. I have the feeling DOJ would kick you over there or not inform you as well as EEOC. But let's read first and see what the union does in the meantime.

Reading #3 after ADA guide and the short EEOC guide, progress to Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act.


Here's an exciting sample of the reading that awaits you. When you read governmentese like this the stuff at the top usually called "General ______" is definitions, principles that are applied globally to what proceeds. I have not read it, FYI.

INTRODUCTION

This Enforcement Guidance clarifies the rights and responsibilities of employers and individuals with disabilities regarding reasonable accommodation and undue hardship. Title I of the ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, except when such accommodation would cause an undue hardship. This Guidance sets forth an employer's legal obligations regarding reasonable accommodation; however, employers may provide more than the law requires.

This Guidance examines what "reasonable accommodation" means and who is entitled to receive it. The Guidance addresses what constitutes a request for reasonable accommodation, the form and substance of the request, and an employer's ability to ask questions and seek documentation after a request has been made.

The Guidance discusses reasonable accommodations applicable to the hiring process and to the benefits and privileges of employment. The Guidance also covers different types of reasonable accommodations related to job performance, including job restructuring, leave, modified or part-time schedules, modified workplace policies, and reassignment. Questions concerning the relationship between the ADA and the Family and Medical Leave Act (FMLA) are examined as they affect leave and modified schedules. Reassignment issues addressed include who is entitled to reassignment and the extent to which an employer must search for a vacant position. The Guidance also examines issues concerning the interplay between reasonable accommodations and conduct rules.

The final section of this Guidance discusses undue hardship, including when requests for schedule modifications and leave may be denied.

NOnuts, with regard to your allergist appointment today and getting the type of documentation you need you may want to fast forward to this. I've spoiler tagged it into collapse for spacing purpose. Click on the tag to expand the text.

I've selected the Q&A with examples re: documentation from medical professional to request or document according to fed standards. Make everything nice n' tidy by the fed standard in case the union will provide a rep or lawyer or something. That way if you file, which would probably go to mediation, you've already satisfied the fed's standards.

[spoiler]May an employer ask an individual for documentation when the individual requests reasonable accommodation?

Yes. When the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his/her disability and functional limitations. (27) The employer is entitled to know that the individual has a covered disability for which s/he needs a reasonable accommodation.

Reasonable documentation means that the employer may require only the documentation that is needed to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation. Thus, an employer, in response to a request for reasonable accommodation, cannot ask for documentation that is unrelated to determining the existence of a disability and the necessity for an accommodation. This means that in most situations an employer cannot request a person's complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation. If an individual has more than one disability, an employer can request information pertaining only to the disability that requires a reasonable accommodation.

An employer may require that the documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional. The appropriate professional in any particular situation will depend on the disability and the type of functional limitation it imposes. Appropriate professionals include, but are not limited to, doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals.

In requesting documentation, employers should specify what types of information they are seeking regarding the disability, its functional limitations, and the need for reasonable accommodation. The individual can be asked to sign a limited release allowing the employer to submit a list of specific questions to the health care or vocational professional.(28)

As an alternative to requesting documentation, an employer may simply discuss with the person the nature of his/her disability and functional limitations. It would be useful for the employer to make clear to the individual why it is requesting information, i.e., to verify the existence of an ADA disability and the need for a reasonable accommodation.

Example A: An employee says to an employer, "I'm having trouble reaching tools because of my shoulder injury." The employer may ask the employee for documentation describing the impairment; the nature, severity, and duration of the impairment; the activity or activities that the impairment limits; and the extent to which the impairment limits the employee's ability to perform the activity or activities (i.e., the employer is seeking information as to whether the employee has an ADA disability).

Example B: A marketing employee has a severe learning disability. He attends numerous meetings to plan marketing strategies. In order to remember what is discussed at these meetings he must take detailed notes but, due to his disability, he has great difficulty writing. The employee tells his supervisor about his disability and requests a laptop computer to use in the meetings. Since neither the disability nor the need for accommodation are obvious, the supervisor may ask the employee for reasonable documentation about his impairment; the nature, severity, and duration of the impairment; the activity or activities that the impairment limits; and the extent to which the impairment limits the employee's ability to perform the activity or activities. The employer also may ask why the disability necessitates use of a laptop computer (or any other type of reasonable accommodation, such as a tape recorder) to help the employee retain the information from the meetings.(29)

Example C: An employee's spouse phones the employee's supervisor on Monday morning to inform her that the employee had a medical emergency due to multiple sclerosis, needed to be hospitalized, and thus requires time off. The supervisor can ask the spouse to send in documentation from the employee's treating physician that confirms that the hospitalization was related to the multiple sclerosis and provides information on how long an absence may be required from work.(30)

If an individual's disability or need for reasonable accommodation is not obvious, and s/he refuses to provide the reasonable documentation requested by the employer, then s/he is not entitled to reasonable accommodation.(31) On the other hand, failure by the employer to initiate or participate in an informal dialogue with the individual after receiving a request for reasonable accommodation could result in liability for failure to provide a reasonable accommodation.(32)
May an employer require an individual to go to a health care professional of the employer's (rather than the employee's) choice for purposes of documenting need for accommodation and disability?

The ADA does not prevent an employer from requiring an individual to go to an appropriate health professional of the employer's choice if the individual provides insufficient information from his/her treating physician (or other health care professional) to substantiate that s/he has an ADA disability and needs a reasonable accommodation. However, if an individual provides insufficient documentation in response to the employer's initial request, the employer should explain why the documentation is insufficient and allow the individual an opportunity to provide the missing information in a timely manner. Documentation is insufficient if it does not specify the existence of an ADA disability and explain the need for reasonable accommodation.(33)

Any medical examination conducted by the employer's health professional must be job-related and consistent with business necessity. This means that the examination must be limited to determining the existence of an ADA disability and the functional limitations that require reasonable accommodation.(34)If an employer requires an employee to go to a health professional of the employer's choice, the employer must pay all costs associated with the visit(s).
Are there situations in which an employer cannot ask for documentation in response to a request for reasonable accommodation?

Yes. An employer cannot ask for documentation when: (1) both the disability and the need for reasonable accommodation are obvious, or (2) the individual has already provided the employer with sufficient information to substantiate that s/he has an ADA disability and needs the reasonable accommodation requested.

Example A: An employee brings a note from her treating physician explaining that she has diabetes and that, as a result, she must test her blood sugar several times a day to ensure that her insulin level is safe in order to avoid a hyperglycemic reaction. The note explains that a hyperglycemic reaction can include extreme thirst, heavy breathing, drowsiness, and flushed skin, and eventually would result in unconsciousness. Depending on the results of the blood test, the employee might have to take insulin. The note requests that the employee be allowed three or four 10-minute breaks each day to test her blood, and if necessary, to take insulin. The doctor's note constitutes sufficient documentation that the person has an ADA disability because it describes a substantially limiting impairment and the reasonable accommodation needed as a result. The employer cannot ask for additional documentation.

Example B: One year ago, an employer learned that an employee had bipolar disorder after he requested a reasonable accommodation. The documentation provided at that time from the employee's psychiatrist indicated that this was a permanent condition which would always involve periods in which the disability would remit and then intensify. The psychiatrist's letter explained that during periods when the condition flared up, the person's manic moods or depressive episodes could be severe enough to create serious problems for the individual in caring for himself or working, and that medication controlled the frequency and severity of these episodes.

Now, one year later, the employee again requests a reasonable accommodation related to his bipolar disorder. Under these facts, the employer may ask for reasonable documentation on the need for the accommodation (if the need is not obvious), but it cannot ask for documentation that the person has an ADA disability. The medical information provided one year ago established the existence of a long-term impairment that substantially limits a major life activity.

Example C: An employee gives her employer a letter from her doctor, stating that the employee has asthma and needs the employer to provide her with an air filter. This letter contains insufficient information as to whether the asthma is an ADA disability because it does not provide any information as to its severity (i.e., whether it substantially limits a major life activity). Furthermore, the letter does not identify precisely what problem exists in the workplace that requires an air filter or any other reasonable accommodation. Therefore, the employer can request additional documentation.
[/spoiler]

Here's the 2008 expansion and clarification on eligibility. It broadens the term disability so if you come up against the argument that it's "only" a food allergy and does not qualify, emphasize anaphylaxis and substantially limits one or more major life activities. The formatting doesn't quite copy and paste so apologies it's a little hard to read.

But you've got two linked issues: eligibility and accommodations.

Notice Concerning The Americans With Disabilities Act (ADA) Amendments Act of 2008

On September 25, 2008, the President signed the Americans with Disabilities Act Amendments Act of 2008 ("ADA Amendments Act" or "Act"). The Act emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.

The Act makes important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of EEOC's ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

The Act retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:

    directs EEOC to revise that portion of its regulations defining the term "substantially limits";
    expands the definition of "major life activities" by including two non-exhaustive lists:
        the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating);
        the second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions");
    states that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability;
    clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
    changes the definition of "regarded as" so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is "regarded as" disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor;
    provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation.

EEOC will be evaluating the impact of these changes on its enforcement guidances and other publications addressing the ADA.

Effective Date:

The ADA Amendments Act is effective as of January 1, 2009. EEOC's regulations to implement the equal employment provisions of the ADA Amendments Act are effective as of March 25, 2011.

[twinturbo]

Some sample letters clarifying eligibility in the broadened amendment act of 2008 made to ADA.

[NONuts]

Thank you, spoke to union Rep today and requested an interactive meeting (HR, risk management etc..) with my rep and chapter president present. I still feel overwhelmed and am doing my best to not make any mistakes. I feel like I have to reread everything for me to comprehend it...ugh.

[twinturbo]

• Letter from doctor documenting your disability for eligibility purposes. That your immune system condition LTFA-anaphylaxis I'm assuming substantially limits a major life activity when active. Examples: walking, breathing, so forth. It may not be visible or active at all times to be eligible as a disability. It may be hidden and episodic as FA and anaphylaxis are.
• Inform employer for needed accommodations. They must provide you with an effective accommodation unless they prove it's an undue burden. See literature for definitions.
• Employer may not terminate you based on disability alone. If an effective accommodation that is not a an undue burden cannot be found then they must consider reassignment. Certainly not termination.
• Print out some of the literature from the links. Copy the location of the links and email them to yourself so you can find them later or forward on to a union rep or attorney. Save any email or paper documentation your employer gives you. Make notes of anything verbal and email to yourself for paper trail and timestamp.

Plus whatever anyone adds to this.

[NONuts]

Thank you so much.

[Macabre]

I really would call the DOJ office in your area. I have done that. They were responsive and helpful. And that was way back in 2002.

[CMdeux]

^ agree.

And if your physician's letter states just ONE thing, it needs to make it clear that YOU are at risk of anaphylaxis, and that anaphylaxis is episodic but debilitating in every life-activity.

[NONuts]

Do my doctor need to state ADA disability in the letter? Or what wording would he have to use?

[CMdeux]

A focus on your LIMITATIONS as a result, really-- that is what distinguishes idiosyncrasy from disabling condition; how "impaired" are you relative to the general population?

[twinturbo]

Nothing new to add just making some moral support rounds in the morning. Wishing you luck and hoping you keep in touch for updates. Like the others said call DOJ at any point. We may have some insight on the laws but they have the enforcement power. Odds are you have enough actionable documents in hand for them to get some traction.