https://www.youtube.com/watch?v=EDK8yTbrQGA

The following is the transcript from my most recent video:

Understanding Limitations and Restrictions

Hi, my name’s Kyle Ingram. I’m a disability rights attorney focusing on federal employees in Washington, D.C. Today I’m going to talk about reasonable accommodations for federal employees and the concept of limitations and restrictions. These two concepts are critical to getting effective accommodations, but most people don’t understand how important they are, including doctors and reasonable accommodation specialists.

The Documentation Problem

I work with federal employees every day who are struggling to get accommodations, and I see the same problem: medical documentation that doesn’t clearly spell out the individual’s limitations and restrictions. The problem is that when your documentation is vague, agencies exploit that ambiguity.

They provide minimal accommodations and claim they’ve met their legal obligations. This is typically called “alternative accommodations,” and I’m going to help you understand today how to avoid this. This presentation is specifically about federal employment under the Rehabilitation Act.

If you’re a private sector or state employee, some of this may apply to you under the ADA, the Americans with Disabilities Act, but the legal standards can be different. So just understand that this is tailored to employees of the federal government. Before I dive in, I want to give a quick legal disclaimer.

Legal Disclaimer

This presentation is for general educational purposes only. It is not legal advice. If you’re facing a legal situation, consult with a qualified attorney who can review your specific circumstances. Nothing in this presentation creates an attorney-client relationship.

The Shift from Disability Definition to Effectiveness

In 2009, Congress dramatically expanded the definition of what is a disability under the ADA and Rehabilitation Act. That means that the concept of who is covered by the act is greatly expanded. That used to be a big area for litigation. However, after 2009, the definition has become so broad that it’s rare for an agency to argue about whether somebody has a disability.

Almost any medical condition can potentially qualify as a disability. Since 2009, the issue most often challenged in litigation has shifted to effectiveness, which means: did the agency provide the individual with accommodations for their limitations and restrictions?

What Agencies Must Provide vs. What You Prefer

Under the law, agencies must provide effective accommodations, but they don’t have to provide the accommodation that the individual prefers, and they don’t have to provide what the individual’s doctor or other medical professional recommends.

Often I hear from federal employees that their doctor advised a specific accommodation, but that doesn’t mean the agency is required to provide it. The question often is: did the agency provide an accommodation that was effective at meeting the identified restrictions and limitations?

The Power of Specific Limitations: The 25-Pound Example

For example, if your limitations state that you cannot lift more than 25 pounds or stand for longer than an hour without a break, it’s clear when the agency accommodation is meeting this requirement. But when you have vague limitations or restrictions such as “limited in lifting” or “limitation in standing,” it’s unclear when that would be violated or what the agency has to do to meet that limitation.

So if your documentation doesn’t clearly state your limitations, how is the agency going to know what needs to be accommodated?

Why Doctors Get It Wrong: The Prescription Model

Medical documentation often fails because doctors approach accommodation paperwork using what I call the “prescription model.” They provide orders that patients follow: take this medication twice a day, come back in two weeks. The doctor directs and the patient follows. But reasonable accommodations don’t work that way.

Employers are not obligated to follow a doctor’s specific instructions. Instead, doctors really need to act as medical experts providing evidence about what an employee can and cannot do. Think of the medical documentation as giving the doctor a seat at the table. During the interactive process, the employee and the agency can discuss accommodations, but neither can really provide objective medical evidence on their own.

The Role of Medical Documentation

The employee cannot independently verify their medical limitations, and the agency generally can’t make medical assessments about what the employee’s capable of doing. They certainly shouldn’t be.

That’s where the medical documentation comes in. The medical documentation provides the objective expert evidence that defines what the employee’s medical condition prevents them from doing. It answers questions like: how much can they lift? How long can they stand? What triggers their symptoms? What specific functional abilities are affected?

Without this medical evidence, the interactive process lacks the foundation needed to determine what accommodations are necessary and whether proposed accommodations will be effective.

Why Doctors Aren’t Trained for This

One of the issues is that doctors really aren’t trained in the legal requirements for reasonable accommodations. They’re trained to treat patients, not to document disability limitations for legal purposes. Doctors may also worry about damaging employability. If they write overly restrictive limitations, the employee might lose their job.

This leads doctors to be cautious in what they write, and sometimes they can be a bit mealy-mouthed about it.

The Gold Standard: Clear, Specific, Measurable Restrictions

So limitations and restrictions define what an employee can and cannot do because of their medical condition. The 25-pound lifting restriction is really the gold standard for what effective medical documentation looks like. It’s clear and specific.

Everyone understands what 25 pounds means. It’s measurable. You can objectively determine whether a task exceeds that restriction. It’s applicable across various circumstances that might arise in the workplace, such as lifting boxes, opening heavy doors, moving equipment, or pushing carts.

And it’s individual to the employee. It states what this specific person can and cannot do, not just what people with this condition typically experience. That’s really important to remember: that it’s the person’s specific limitations that are at issue, not the general limitations that might be applicable.

Documentation as the Doctor’s Voice

Again, medical documentation serves as the doctor’s voice during the interactive process. The doctor cannot be present at accommodation meetings to explain medical limitations or evaluate proposed alternatives in real time. This means that the documentation must be comprehensive from the start.

How Agencies Exploit Vague Documentation

So why is this so important? Well, in practice, agencies try to provide the minimum accommodation necessary to meet the documented restrictions that a person has. If the restrictions are vague, the agency has a lot of flexibility to interpret them quite narrowly.

Vague restrictions often lead to minimal accommodations, and general limitations don’t work—at least not in practice. It’s difficult to know what somebody needs if the limitation is stated in a vague manner. Doctors’ recommendations carry almost no weight. The agency can ignore a recommendation for telework if the documented restrictions don’t support telework as a necessary reasonable accommodation.

Connecting Restrictions to Accommodations: The Telework Example

And that’s what a lot of people are seeing right now. The accommodation must flow logically from the documented restrictions. If you’re requesting telework, there needs to be a restriction that telework addresses, like “requires immediate access to restroom facilities” or “can’t drive more than 10 minutes due to triggers.”

Case Study 1: Melissa M.

So I’m going to point out a couple of cases here that I think are examples of what people should be concerned with. The first case is Melissa M. In this case, her accommodation was denied. She got alternative accommodations, but she had requested telework, and the issue was that she had limited concentration.

There were no clues in her medical documentation that said, “This is why she needs this accommodation for her concentration.” Then she later updated that with information stating that she had IBS, or Irritable Bowel Syndrome. So that’s when the agency changed and they provided her with the accommodation. When she sued and she said, “Hey, I needed both accommodations from the beginning,” the EEOC denied that claim and said, “We don’t see any evidence that you told them about the IBS.”

Case Study 2: Complainant v. the Army

The other case that I’ve got here is Complainant v. the Army. This is where somebody had requested full-time telework, and the agency instead provided a wheelchair and a parking space and other types of accommodations.

The key sentence that the EEOC stated in this case is: “While complainant may have preferred telework, an individual with a disability is not entitled to the accommodation of his or her choosing, but rather to an accommodation that is effective.”

Understanding the “Effectiveness” Standard

The effectiveness, again, is the floor at which the agency must accommodate. Everything above that, they’re not obligated to accommodate, and they can change that accommodation. And that’s something we’re seeing a lot with the return-to-office order coming from this current administration. People are being brought back into the office and having their accommodations reassessed.

The Return-to-Office Crisis

Even though they previously had a prior accommodation that met their needs in the form of telework, in a lot of cases, they’re being brought back to the office and told they don’t need that accommodation—that they can have a lesser accommodation. And that’s entirely consistent with the law.

If the medical documentation does not spell out what those restrictions are, and those restrictions have a nexus, a connection with the accommodation that is necessary—telework in this case—

How to Protect Yourself

It’s a good idea to work with your doctor to document clear and specific limitations and restrictions. This is your best defense to alternative accommodations that don’t work, and it sets you up in a position to legally challenge accommodations that are not effective.

The Role of an Attorney

An attorney can help you identify your functional limitations and translate these into specific, measurable restrictions or limitations before you talk to your doctor. Again, they’re not trained to do this kind of work, even under the best of circumstances, and an attorney can help you understand what makes documentation effective and to avoid common pitfalls that lead to denied accommodations.

This kind of preparation can make your conversation with your doctor more productive. If you have questions about structuring your limitations or what to suggest to your doctor, I would recommend consulting with a qualified attorney before submitting documentation.

Conclusion

An attorney can help you think through these issues and have a more productive discussion with your medical professional and, ultimately, hopefully to get the accommodations that you need. This work upfront can make the difference in getting an effective accommodation or not.

For more information about federal employee EEO issues, feel free to visit my blog at ingramlaw.com. Thank you for watching.