'Disability Without Documentation' by Katherine Macfarlane in (2021) 90 Fordham Law Review 60 comments
Disability exists regardless of whether a doctor has confirmed its existence. Yet in the American workplace, employees are not disabled, or entitled to reasonable accommodations, until a doctor says so. This Article challenges the assumption that requests for reasonable accommodations must be supported by medical proof of disability. It proposes an accommodation process that accepts an individual’s assessment of their disability and defers to their accommodation preferences. A documentation-free model is not alien to employment law. In evaluating religious accommodations, employers, and courts, take a hands-off approach to employees’ representations that their religious beliefs are sincere. Disability deserves the same deference. This Article also contributes a novel analysis of agency guidance, exploring how its support of medical documentation requirements conflicts with legislative intent and the American with Disabilities Act’s rejection of the medical model of disability.
Documenting disability has its price. It requires access to affordable healthcare and a relationship with a medical provider willing to confirm disability’s existence. Documentation requirements may delay an urgently-needed accommodation—one that would, for example, permit an employee to work from home. Until documentation requirements are relaxed, if not eliminated, disabled employees may be forced to work in dangerous conditions, or not work at all.
