An employer is not  required  to request medical documentation as part of the interactive process under the ADA. The employee requesting    accommodation is often the best source of information about his or her medical impairment and limitations. Use logical judgment in deciding when to request the information. If the disability and need for accommodation are obvious, move-on to identify and implement accommodation solutions.
​Q: When is medical documentation sufficient to determine if the employee has a disability and needs an accommodation?
A: Documentation is sufficient if it substantiates that the individual has a disability and needs the reasonable accommodation requested. Sufficient medical documentation should describe the nature, severity, and duration of the impairment, the activity or activities that the impairment limits, the extent to which the impairment limits the employee's ability to perform the activity or activities, and should also substantiate why the requested reasonable accommodation is needed.
For a sample request for medical information, see   JAN's A to Z: Medical Exams and Inquiries.  Employers should customize this form on a case-by-case basis depending on the information that is needed.
For EEOC's guidance on medical documentation in response to an accommodation request, see question 6 in Reasonable Accommodation and Undue Hardship under the ADA.
 
Source: https://askjan.org/articles/Requests-For-Medical-Documentation-and-the-ADA.cfm
 

   Here is some helpful guidance for the workplace at the intersection of ADA* and the Pandemic.
​   Part I
    Backstory... The ADA has restrictions on when and how much medical information an employer may obtain from any applicant or employee. Prior to making a conditional job offer to an applicant, disability-related inquiries and medical exams are generally prohibited. They are permitted between the time of the offer and when the applicant begins work, provided they are required for everyone in the same job category.  …Once an employee begins work, any disability-related inquiries or medical exams must be job related and consistent with business necessity.
Key points -   testing

• The ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. Testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard

A.1. How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?   (3/17/20)
During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. …
A.4. Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19? (3/17/20)
Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
A.5. When employees return to work, does the ADA allow employers to require a doctor's note certifying fitness for duty? (3/17/20)
Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees… new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
A.6. May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) when evaluating an employee’s initial or continued presence in the workplace? (4/23/20; updated 9/8/20 to address stakeholder questions about updates to CDC guidance)
The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. …
A.8. May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19? (9/8/20; adapted from 3/27/20 Webinar Question 1)
Yes. Employers may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19, and ask if they have been tested for COVID-19. Symptoms associated with COVID-19 include, for example, fever, chills, cough, and shortness of breath. The CDC has identified a current list of symptoms.
An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace because, as EEOC has stated, their presence would pose a direct threat to the health or safety of others. However, for those employees who are teleworking and are not physically interacting with coworkers or others (for example, customers), the employer would generally not be permitted to ask these questions. …

           *     Title I of the ADA applies to private employers with 15 or more employees, state and local government employers, employment agencies, and labor unions. The Equal Employment Opportunity Commission provides laws, guidance, and technical assistance for implementation of the ADA.      
 

• All EEOC materials related to COVID-19 are collected at   www.eeoc.gov/coronavirus.
• *Source - What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, Technical Assistance Questions and Answers - Updated on December 14, 2021.

 
 

     Helen, a paraplegic, lives in a housing development. She can't get in to the clubhouse because it has two steps. Her claim against the Homeowners Association to provide access to the clubhouse is in mediation.
     Meeting privately with the mediator, the Homeowners Association says putting in a lift or ramp is completely unnecessary - there are so many friendly people going to the monthly meetings it would be easy for Helen to just ask people to carry her and her wheelchair inside.
     What should the mediator do?:
A) Communicate the proposal to Helen and her attorney as a possible reasonable modification;
B) Inform the Homeowners Association that this suggestion would illegally require Helen to ask others for help rather than using the clubhouse independently as other homeowners do;
C) Explain that this may be offensive to Helen and could undermine the negotiations.
Answer: B and C
     To avoid derailment of your ADA or Housing Discrimination mediation, look for these three attributes in your mediator:
1. Knowledge of Disabilities. Your preferred mediator understands how a disability affects the individual and how the disability might be accommodated in the workplace or housing without undue burden. People with disabilities facing accessibility issues frequently feel like their needs are not understood. So find a mediator who instills confidence in the claimant that the mediator “gets it”. Cases are more likely to settle when both sides feel understood.
2. Disability Access. This is not just knowledge of building standards, but also an understanding of policy modifications, the interactive process dance, and balancing of the rights of individuals with legitimate business needs.
3. Disability Law. This means general knowledge of the ADA, FHA, and IDEA and their amendments, case law developments, and guidance issued by the regulatory agencies - but also what the laws were meant to accomplish.
     An experienced mediator who has these attributes can effectively explore the range of settlement options, and not take mediation time to learn the law or lead the parties down a dead-end.

David Geffen is a…
ADA Mediator • Reasonable Accommodation Mediator • FEHA Mediator • FHA Mediator • Employment & Housing Mediator • Wage & Hour Mediator • IDEA Mediator • Serious Personal Injury Mediator • Contract Dispute Mediator • Civil Rights Mediator • Real Property Mediator • Partnership Disputes Mediator • Business Disputes Mediator • ADA Expert • Reasonable Accommodation Expert

     Once upon a time (about two weeks ago at Loyola Law School) three simulated mediations were conducted simultaneously based on identical facts.       

          Facts:    A trucking company claimed that its long time supplier had provided a defective product that damaged the engines of numerous trucks (overhauls out-of-pocket cost $210,000), and would likely continue to cause injury to others (estimated future damages $245,000, plus $110,000 interest). The supplier claimed that it tested the product and its expert concluded there was no way its product could’ve caused the damage.

      First year students played the roles of plaintiff, defendant, and their counsel while practicing mediators mediated in separate rooms. After an hour and a half, all three cases were settled and everyone met to compare results:

Mediation #1 result: $115,000, +50% discount on future supplies, plus public apology for disparaging defendant

          Mediation #2 result: $155,000, plus non-disparagement clause

          Mediation #3 result: $200,000

     What made the difference? Were some students more effective negotiators than others? Or were the mediators influencing the outcomes? The answer is clearly both.

     In Mediation #1, defendant took a hard line on liability and opened with only $10,000, claiming no interest in further ongoing business. After the mediation, we learned that it had set $125,000 as the most it would pay. The mediator challenged plaintiff to assess the likelihood of proving its case. Plaintiff eventually agreed to $115,000 and a future discount because the hope of recouping its losses through future discounts was better than the risk of losing at trial.

     In Mediation #2, both sides presented confidently but the mediator told the defendant that it had a strong defense, garnering the defendant’s trust, allowing her to lead the parties to a settlement that was 25% less than the out-of-pocket damages. They also agreed to a non disparagement clause.

     In Mediation #3, the mediator was evaluative from the outset. Both sides acceded to his valuation, almost 100% of plaintiff's out-of-pocket costs. (This mediator later commented that he saw the Mediation #1 agreement on the 50% discount to be an invitation for further litigation.)

     Here are some surprising takeaways:

1. The highest opening plaintiff’s demand, $700,000 (#1), ended with the lowest cash payment;
2. All the students were satisfied with their outcomes, until they saw the results from other mediations;
3. The most judicial approach ended with the highest cash settlement.

    
          This simulation offered a rare inside glimpse of how varied the outcomes will be depending on: 1) the argument and skills of the advocates; 2) the mediator's approach; and 3) how much influence the advocates allow their mediator to exert.

ADA Mediator •  Reasonable Accommodation Mediator • FEHA Mediator •  FHA Mediator • Employment & Housing Mediator • Wage & Hour Mediator • IDEA Mediator • Serious Personal Injury Mediator • Contract Dispute Mediator • Civil Rights Mediator • Real Property Mediator • Partnership Disputes Mediator • Business Disputes Mediator • ADA Expert • Reasonable Accommodation Expert  

As I prepare for my next class of students at Loyola Law School, I thought I’d find out what you, the mediatees, are thinking. Please help my students better understand litigators’ needs by responding with your answers to three short questions:

1. What do you want most from your mediator? (Please choose only 3 of the following)

A. Knowledge of the subject matter
B. Creative solutions to help settle
C. Tenacity about getting an agreement
D. Low key, low-pressure
E. Patience with the process
F. Wades deep into the facts
G. Provides his/her opinion on settlement value


2. Where do you prefer to get your mediator? (Please choose only 2 of the following)
A. AAA
B. ADR
C. ARC
D. JAMS
E. Judicate West
F. Solo Mediation practice


3. The most optimal time to mediate is? (Please choose only 1 of the following)
A. At the outset of litigation
B. After significant discovery
C. Right before trial


On behalf of my students, I thank you.

David Geffen is a...
ADA Mediator •  Reasonable Accommodation Mediator • FEHA Mediator •  FHA Mediator • Employment & Housing Mediator • Wage & Hour Mediator • IDEA Mediator • Serious Personal Injury Mediator • Contract Dispute Mediator • Civil Rights Mediator • Real Property Mediator • Partnership Disputes Mediator • Business Disputes Mediator • ADA Expert • Reasonable Accommodation Expert  

     My clients tell me I’m a great mediator. But if I’m not your mediator, that’s okay. You can still put my skills to work for you as your Mediation Partner.

    Why do you need one? Even the most experienced attorneys are often perplexed by the communications they receive during mediation and frequently ask the mediator for guidance. However, the mediator is providing feedback based upon his or her objective, which is to reach a settlement, and not your objective, to achieve the best results for your client. That's where I can help.

    I understand what mediators do and why they do it. It's kind of like the Magicians Guild.  I can work with you to: 1) prepare a mediation strategy; 2) advance the mediation strategy by attending the mediation with you, analyzing the mediator’s style, communications, and mediation tools that are being employed; and 3) advise you on how to negotiate to achieve the best result for your client. If preferred, I can work anonymously by phone to guide you during the various stages of negotiation.

    Acting as your Mediation Partner, I can give you a competitive advantage and exponentially elevate your settlement results.

    100% Satisfaction Guaranteed. If you are not satisfied with the results, you don’t pay. And, if you’re waiting for settlement funds, I’ll wait too.
     Please call me to talk about tailoring this service to your needs.

David Geffen is a...
ADA Mediator •  Reasonable Accommodation Mediator • FEHA Mediator •  FHA Mediator • Employment & Housing Mediator • Wage & Hour Mediator • IDEA Mediator • Serious Personal Injury Mediator • Contract Dispute Mediator • Civil Rights Mediator • Real Property Mediator • Partnership Disputes Mediator • Business Disputes Mediator • ADA Expert • Reasonable Accommodation Expert 

    Congratulations to my co-counsel, Disability Rights California,  celebrating 40 years of advancing an inclusive California.

     As featured in DRC's newsletter this week...

Disability Rights California and disability groups obtain 4,250 accessible, affordable housing units    

We work to make sure people with disabilities can live wherever they choose. Our Civil Rights Practice Group advocates for increasing the stock of affordable and accessible housing through complex litigation and systemic advocacy.

     In 2012, Independent Living Center of Southern California (ILCSC), Fair Housing Council of San Fernando Valley (FHCSFV), and Communities Actively Living Independent and Free (CALIF) joined for a lawsuit against the city of Los Angeles and the former Community Redevelopment Agency for the city of Los Angeles (CRA/LA) to improve accessibility of affordable housing for people with disabilities. Disability Rights California (DRC) and their co-counsel Relman, Dane, and Colfax; Disability Rights Legal Center; and the Law Offices of David Geffen filed the suit on behalf of the three advocacy groups.

    Accessible housing features can include grab bars in bathrooms; doors designed to allow passage of wheelchairs; lower placement of kitchen counters; and visual alarms and tactile controls for people with hearing or vision impairments.

     “For the first time, a city with millions of persons with disabilities, advocates, independent living centers and fair housing, held hands together to yell ‘This is enough,’” said Norma Jean Vescovo, former executive director of ILCSC.

*Read more here: https://www.disabilityrightsca.org/stories/disability-rights-california-and-disability-groups-obtain-4250-accessible-affordable  

David Geffen is a...
ADA Mediator •  Reasonable Accommodation Mediator • FEHA Mediator •  FHA Mediator • Employment & Housing Mediator • Wage & Hour Mediator • IDEA Mediator • Serious Personal Injury Mediator • Contract Dispute Mediator • Civil Rights Mediator • Real Property Mediator • Partnership Disputes Mediator • Business Disputes Mediator • ADA Expert • Reasonable Accommodation Expert  

Not unlike many mediations, the parties were far apart, and the gap was closing at a snail’s pace. Up to that point, neither side had disclosed their desired outcome except in general terms – Plaintiff wants as much as possible. Defendant wants to pay as little as possible. Then, defendant’s counsel took a surprising tack:

“I have authorization to settle the case up to $150,000. I’d like to keep it under that. Can you help me get there?”

     What just happened? A moment ago I was a free agent. Now, apparently, I had been enlisted to support the defendant’s goal. By bringing the mediator closer, revealing a confidence, and giving the mediator her trust, the attorney drew upon the mediator’s natural inclination to want to help solve her problem.

     This is a great strategy in mediation. On the one side, there was no specific direction. On the other side was a clear destination. With a fixed and not unreasonable goal, mediators have something to work towards.

     The negotiations continued but the gap narrowed much more quickly than it would have otherwise. Of course, the case settled for slightly more than the defendant’s stated goal, but even the defendant knew that was going to happen.

David Geffen is a...
ADA Mediator •  Reasonable Accommodation Mediator • FEHA Mediator •  FHA Mediator • Employment & Housing Mediator • Wage & Hour Mediator • IDEA Mediator • Serious Personal Injury Mediator • Contract Dispute Mediator • Civil Rights Mediator • Real Property Mediator • Partnership Disputes Mediator • Business Disputes Mediator • ADA Expert • Reasonable Accommodation Expert  

Typically, I wouldn't request that I speak to clients apart from their attorney, but this time I asked the attorney for permission and he strongly encouraged it. That's one of the the great things about mediation - it allows room for intuition and common sense.    

The wife had been silent and supportive of her vigilant husband in front of counsel. When I talked to the husband and wife alone, it was clear to me that the biggest conflict was between them.

     I began by telling them I knew that there was no amount of money that would make up for the wrong that they had suffered. The wife cried and expressed gratitude for this acknowledgment, saying,. "No one has ever said that to us before." Then, resolutely, but gently, she told her husband it was time to let go, that this five year struggle had cost their family enough. He prepared to argue, but then, understanding at last, sighed deeply and deferred to her.

     I was able to settle the case within the next half hour.

David Geffen is a...
ADA Mediator •  Reasonable Accommodation Mediator • FEHA Mediator •  FHA Mediator • Employment & Housing Mediator • Wage & Hour Mediator • IDEA Mediator • Serious Personal Injury Mediator • Contract Dispute Mediator • Civil Rights Mediator • Real Property Mediator • Partnership Disputes Mediator • Business Disputes Mediator • ADA Expert • Reasonable Accommodation Expert 

David Geffen handled a complicated, business dispute mediation for my client. The case involved a substantial amount of money, the transfer of an active business and consequences at stake for both sides.

Mr. Geffen took his time and got a feel for all the moving parts and the financial impediments to settlement. He got us to an intelligent, thoughtful solution that made complete business sense.    

Mr. Geffen also dealt with some personal goals that were important to my client that I had somewhat disregarded being focused on the financial issues. My client tells me that he left the mediation with the belief his needs were listened to and that he was impressed with Mr. Geffen and Mr. Geffen's work on his case, including Mr. Geffen's sensitivity to his requirements and his personal goals. Mr. Geffen got this case settled just before trail. I didn't think it would be possible. He saved my client money and the stress and uncertain exposure of trial.

- Santa Monica Attorney

*Editor's Note 1: I would definitely hire this guy.
*Editor's Note 2: Thank you to the Santa Monica Bar Association for this introduction. http://smba.net/

David Geffen is a...
ADA Mediator •  Reasonable Accommodation Mediator • FEHA Mediator •  FHA Mediator • Employment & Housing Mediator • Wage & Hour Mediator • IDEA Mediator • Serious Personal Injury Mediator • Contract Dispute Mediator • Civil Rights Mediator • Real Property Mediator • Partnership Disputes Mediator • Business Disputes Mediator • ADA Expert • Reasonable Accommodation Expert