HR Management & Compliance

Ask the Expert: Getting a Second Opinion on Workspace Accommodation Requests

In our latest installment of Ask the Expert, brought to you by the team of industry experts at HR Hero®, we look at a recent question from a subscriber regarding a requested disability workplace accommodation where the validity is in question. What abilities, obligations, and limitations does an employer have to verify an employee’s medical accommodation requests while ensuring compliance with workplace protection standards?

office accommodation requests

Q: We have an employee who is requesting a private office as an accommodation for light sensitivity and anxiety. This individual is claiming that being in a cubicle exacerbates these conditions. They don’t have control of the overhead lighting, which causes migraine headaches, and the noise within the immediate office area causes anxiety.

The International Disability Alliance (IDA) has offered several possible solutions to alleviate these concerns: disabling the light overhead, providing a desk lamp, providing a white noise machine or noise canceling headphones, additional padding on the cubical, etc.

This employee has a letter from an attending psychiatrist stating various reason why none of these solutions would work and the IDA has questioned the validity of the claim. As a potential solution, we would like to ask the individual to see a medical professional of the IDA’s choosing for a second opinion. 

How does the FMLA dictate standards for requesting a third-party opinion for medical accommodations? What should be avoided in cases where an employee’s medical claim is in question?

A: If an employer has reason to doubt the validity of a medical certification under the Family and Medical Leave Act (FMLA), it may require an employee to obtain a second opinion at the employer’s expense. Pending receipt of the second (or third) medical opinion, the employee is provisionally entitled to the benefits of the FMLA, including maintenance of group health benefits.

If the certifications do not ultimately establish the employee’s entitlement to FMLA leave, the leave will be designated as non-FMLA leave and may be treated as paid or unpaid leave under the employer’s established leave policies. In addition, an employer may deny FMLA leave if an employee (or the employee’s family member) fails to authorize the care provider to release all relevant medical information necessary to render a sufficient and complete second opinion or if that employee refuses to see the second doctor.

An employer is permitted to designate a healthcare provider to furnish the second opinion, but the provider may not be employed on a regular basis by the employer (For reference, see 29 C.F.R. sect. 825.307(b)). An employer may not regularly contract with or otherwise regularly utilize the services of the healthcare provider furnishing the second opinion unless the employer is located in an area where access to health care is extremely limited (e.g. a rural area where no more than one or two doctors practice the relevant specialty in the vicinity).

A U.S. Department of Labor Fact Sheet states that: “If the second opinion differs from the original certification, the employer may require the employee to obtain a third certification from a healthcare provider selected by both the employee and employer. The opinion of the third health care provider is final and must be used by the employer. The employer is responsible for paying for the second and third opinions, including any reasonable travel expenses for the employee or family member.”

A key issue for an employer considering using the second opinion is whether the employer can show that it has “reason to doubt the validity” of the initial medical certification. The phrase “reason to doubt” is not defined, but most HR and legal experts generally indicate that the employer must have an objective, articulable reason for the doubt.

For example, if the initial medical certification was provided by a doctor with no expertise in the employee’s serious health condition (such as a chiropractor providing certification for a mental health serious health condition), that could be a reason to doubt the validity. Or, if an employee’s certification indicates the employee needs a reduced schedule leave so that the employee never works on Fridays or Mondays, that could be a reason for a second opinion. In contrast, if an employer simply does not agree with a health care provider’s certification, and the health care provider normally treats the employee’s serious health condition, that disagreement likely is not sufficient to trigger a second opinion.

Unlike the Americans with Disabilities Act (ADA), which only requires a disability accommodation when it does not create an undue hardship to the employer, the FMLA does not have any undue hardship exception to its leave provisions. 

Thus, it is generally, it is best for employers to permit some lenience unless the employee’s use of FMLA leave is so contrary to the certification that it suggests fraud or other abuse. 

If suspected FMLA abuse is brought to an employer’s attention, the employer should document how it learned about the potential abuse or misuse of leave. It is important for the employer to follow a decision-making process rather than rushing to judgment on the employee’s actions. An employer’s documentation of its findings throughout the process is critical.

Please note that the FMLA generally does not allow employers to require second or third opinions for recertification, only for the original medical certification (See 29 C.F.R. §825.308(f)). However, the FMLA does allow employers to require a new medical certification every new FMLA year which follows the procedures for the initial medical certification, including any necessary second or third opinions at that time.

As explained in the U.S Department of Labor’s Wage and Hour Division Fact Sheet #28G, “Annual certification – If the employee’s need for FMLA leave lasts beyond a single FMLA leave year, the employer may require the employee to provide a new medical certification in each new FMLA leave year.”

This fact sheet is based on the FMLA regulations, found at 29 C.F.R. §825.305(e), which states, “Where the employee’s need for leave due to the employee’s own serious health condition, or the serious health condition of the employee’s covered family member, lasts beyond a single leave year (as defined in § 825.200), the employer may require the employee to provide a new medical certification in each subsequent leave year. Such new medical certifications are subject to the provisions for authentication and clarification set forth in § 825.307, including second and third opinions.”

Things Employers Should Keep in Mind

It is important to remember that if an employee has a medical condition that is also considered a disability under the ADA (which appears to be the case here), the kind of accommodations the employee is entitled to depends on whether those accommodations create an undue hardship for an employer. The ADA prohibits employers from discriminating against disabled individuals and requires employers to provide reasonable accommodation to disabled individuals if doing so would allow the employee to perform the essential functions of the job.

The ADA defines disability very broadly to include any physical or mental impairment that substantially limits a major life activity. According to the ADA regulations, major life activities include performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working, among other activities (See 29 CFR Sec. 1630.2(i)). Anxiety and light sensitivity could possibly be disabilities if they are severe enough to impair an employee’s ability and ability to breathe, learn, communicate, see, etc.

Thanks to the ADA Amendments Act (ADAAA) expansion of the ADA definition of disability, more mental and physical impairments are covered as disabilities. Further, the Equal Employment Opportunity Commission (EEOC) has indicated that the disability definition is intended to be interpreted broadly. That said, an employer may require that an employee provides medical certification from a health care provider that the employee has a disability and is in need of an accommodation to perform the essential functions of the job.

Although the ADA limits medical inquiries and examinations to those that are job-related and consistent with business necessity, a medical examination that is needed to confirm a disability and/or support an accommodation request meets that standard.

There is no service period requirement under the ADA; if an employee meets the disability definition, he is entitled to accommodation as long as the accommodation does not create an undue hardship for the employer. If the accommodations needed by the employee create an undue hardship for the employer, the employer does not have to provide those accommodations under the ADA. 

Undue hardship under the ADA means that an accommodation would be unduly costly, extensive, substantial, or disruptive, or would fundamentally alter the nature or operation of the business, and the standard is difficult to meet. Among the factors to be considered in determining whether an accommodation is an undue hardship are the cost of the accommodation and the employer’s size, financial resources, and the nature and structure of its operation.

Specific reasonable accommodations may include:

  • Making existing facilities used by employees readily accessible to and usable by employees with disabilities
  • Job restructuring
  • Part-time or modified work schedules and leaves of absence
  • Acquisition or modifications of equipment or devices
  • Appropriate adjustment or modifications of examinations, training materials, or policies
  • Provision of qualified readers or interpreters
  • Reassignment to a vacant position. Reassignment to a vacant position should be considered only when an accommodation in the employee’s current position would pose an undue hardship

However, according to the Appendix to the ADA regulations, the obligation to provide a reasonable accommodation “does not extend to the provision of adjustments or modifications that are primarily for the personal benefit of the individual with a disability. Thus, if an adjustment or modification is job-related, e.g., specifically assists the individual in performing the duties of a particular job, it will be considered a type of reasonable accommodation.

On the other hand, if an adjustment or modification assists the individual throughout his or her daily activities, on and off the job, it will be considered a personal item that the employer is not required to provide.

Accordingly, an employer would generally not be required to provide an employee with a disability with a prosthetic limb, wheelchair, or eyeglasses. Nor would an employer have to provide as an accommodation any amenity or convenience that is not job-related, such as a private hot plate, hot pot, or refrigerator that is not provided to employees without disabilities.”

Because of the potential for legal claims under the ADA and the FMLA, it is recommended that employers ultimately consult with an attorney on these matters to ensure compliance.

Ask the Expert is a service provided to subscribers of BLR®’s HR Hero product, where experts are ready with answers to your organization’s unique questions surrounding HR compliance. To learn more and request a demo of HR Hero, click here.

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