- A Merck pharmaceutical representative won’t get another shot at her disability discrimination claim, the 7th U.S. Circuit Court of Appeals concluded, finding that she failed to provide medical support for her accommodation request (Keen v. Merck, Sharp & Dohme Corp., Nos. 18-1672 & 19-1845 (7th Cir. June 26, 2020)).
- The rep had requested several accommodations: a different vehicle, a lifting restriction, use of a cane and "early or late start." The employer approved the first three requests but asked that she provide medical documentation to support the schedule change. "Not only did [she] fail to do so, her doctor then cleared her to work without this accommodation," the appeals court said.
- Merck can’t be held liable for not accommodating a request that an employee failed to sufficiently support, the 7th Circuit concluded, affirming a lower court’s summary judgment for the employer on the accommodation claim and others.
The Americans with Disabilities Act (ADA) requires, among other things, that employers provide reasonable accommodations to applicants and employees with disabilities.
It allows employers to request additional information to support workers’ requests when the need for the accommodation is not obvious, according to the U.S. Equal Employment Opportunity Commission (EEOC). This can be a discussion with the employee, or a request for information from a healthcare provider but, either way, the request should be narrowly tailored to the condition and request at hand, the agency said in a guidance.
When it comes to the employee’s response, EEOC takes a position similar to the 7th Circuit’s in Keen: "If an individual's disability or need for reasonable accommodation is not obvious, and [the individual] refuses to provide the reasonable documentation requested by the employer, then [he or she] is not entitled to reasonable accommodation."
The agency also has cautioned, however, that the law favors well-documented, good-faith participation in an interactive process. "[F]ailure 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," it said