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My latest paper, Disability Without Documentation, is available on SSRN. It examines reasonable accommodations in the workplace, and how the interactive process requires medical documentation to prove disability. I argue against this practice. A thread. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3781221
Legislative history and relevant guidance is clear that the interactive process should be a collaborative exchange bw employee and employer. Neither source mentions medical records or resort to a doctor's endorsement of disability and/or specific accommodations. 2/
An employee's preferences should control. If technical expertise is needed, the leg history & guidance instruct employers to ask organizations familiar with disability for advice. Reach out to organizations that count people with disabilities as members, for example. 3/
Yet current practice has led to reasonable accommodation forms with mandatory medical documentation of disability requirements. Generally, you need a dr's note to 1) establish that you're disabled and 2) suggest accommodations. Drs speculate about workplaces they do not enter. 4/
People with disabilities have almost no say in describing their own identity and what accommodations would help them succeed. This is not what the ADA intended. 5/
Documentation requirements don't necessarily identify fraud. But they make it harder to obtain accommodations. Check out @DorfmanDoron's fear of the disability con work to learn more about this issue. 6/
What if you don't have an established relationship with a dr? Decent health insurance? Time off to go to a dr? The money to pay a dr who charges you to complete a reas accommodation form? Too bad. 7/
What if the accommodation you need is permission to work from home, during a pandemic? Imagine waiting on medical documentation of disability to prove that you are worthy of the accommodation. 8/
I propose believing employees who assert that they are disabled, and abandoning reliance on healthcare providers' endorsement of disability. Yes, this is radical. Intentionally. 9/
I borrow from the law of religious accommodation and its treatment of sincerely held religious beliefs. Beliefs are hands off, and do not need to be documented. But free exercise is a fundamental right! I address this too. 10/
In some way, anti-discrimination law becomes the last resort in an unforgiving American workplace. Worried about an avalanche of people claiming disability? So that we can all have ergonomic keyboards? Maybe disability law isn't the problem. 11/
While writing, I was thinking about my friends, my students, and other profs with disabilities who had to deal with documentation issues while they pleaded with their employers to allow them to work from home or take an online bar exam. They all had to prove disability. 12/
I address all of this, and the error that I believe caused this chaos, in my paper. I'm very grateful to the disability law community for their support of my efforts. Comments welcome. The end.
