Disability Without Documentation

By Katherine A. Macfarlane

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 individuals’ assessments of their disabilities 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 by exploring how its support of medical documentation requirements conflicts with legislative intent and the Americans with Disabilities Act’s rejection of the medical model of disability.

Documenting disability has its price.  It requires access to affordable health care and a relationship with a health care provider who is willing to confirm a 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.