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Rejecting Treating Doctor’s Opinion Could Violate ADA

By October 4, 2014No Comments

An employer who rejected the return-to-work release issued by an employee’s treating physician in favor of its own doctor’s conflicting opinion may have violated the Americans with Disabilities Act.

Facts of the Case: In Williams v. Baltimore City Community College, an employee with a degenerative eye disease took leave under the Family and Medical Leave Act for surgical treatment of her condition. When her FMLA leave expired in September 2008, she was required to submit a doctor’s note substantiating the need for additional leave and to appear for a Workability Examination by the State Medical Director. Her treating physician recommended a return-to-work date of December 10, 2008. However, the State doctor determined that the employee’s symptoms were unlikely to improve enough in the foreseeable future to allow her to return to work on that date. The employee was subsequently terminated, and she brought suit against the employer for discrimination and failure to accommodate under the ADA.

The Court’s Decision. The Court rejected the employer’s argument that the employee was not disabled. Under the ADA, a person is disabled if she: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. In this case, the Court found that the employer could have regarded the employee as having such an impairment – although the employee’s own doctor stated that she could perform the essential functions of her job starting on December 10, the employer chose to discount that opinion and rely instead on the State doctor’s opinion that the employee could no longer perform her job.

The Court, however, dismissed the employee’s claim that the employer failed to accommodate her disability. Under the ADA, there is “no obligation to provide an accommodation to an employee who is simply ‘regarded as’ disabled.”

Lessons Learned. The ADA does not specify whether the doctor providing medical information to the employer should be the employee’s provider, or whether the employer may select the doctor to evaluate the employee and respond to the request for information. The EEOC expresses a preference for the employee’s own doctor, but acknowledges that the employer may choose the doctor if the employee’s doctor does not or cannot provide sufficient information to substantiate the disability and/or need for accommodation. An employer who has chosen to send the employee to its own doctor, in addition to receiving information from the employee’s doctor, faces a conundrum when the doctors’ opinions conflict. Under the EEOC’s approach, the employer should not simply reject the opinion of the employee’s doctor without any indication of why such opinion is deficient – and without giving the employee’s doctor a chance to address any such deficiencies.

Don Phin, Esq. is VP of Strategic Business Solutions at ThinkHR, which helps companies resolve urgent workforce issues, mitigate risk and ensure HR compliance. Phin has more than three decades of experience as an HR expert, published author and speaker, and spent 17 years in employment practices litigation. For more information, visit