Reasonable Accommodation Meets Arbitrary and Capricious
I’ve been thinking about the physician’s role in the reasonable accommodation process with the decision making role of the employer. While the physician inarguably contributes to identification of an ADA qualifying impairment, a more limited number of physicians will have knowledge of the physical and cognitive demands of the essential functions of a job to the point of being able to contribute to the discussion of likely reasonable accommodation. One’s training and skill may lead to identifying a disability; not having been furnished task-defining demands of the job impedes accurate identification of a functional accommodation.
In ERISA law, the concept of “arbitrary and capricious” is quite often cited as a negatively influencing factor in federal court cases. This occurs when a physician performing file review for an insurer, for example, dismisses out of hand the findings of a relevant functional capacity evaluation. Indeed, once the evaluation is part of the administrative record, it must be considered. In actionable terms, the reviewer must acknowledge the existence of the information, must reflect on his acceptance or rejection of the information, and must document this acceptance or rejection.
How does this affect reasonable accommodation managers? It would seem to be wise to document each suggestion for reasonable accommodation, no matter the source, in the record of the Interactive Conversation. Consideration of the accommodation then becomes part of the Interactive Process which must be carried out in support of the request for accommodation.
When choosing from a variety of suggested accommodations, document the receipt of each suggestion. Then, as part of the Resolution process, include documentation of the accommodation chosen. Following this procedure paints a clear description of your thought process when searching for and implementing an effective, safe, and reasonable accommodation.
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