And I’m pretty darned sure that many employers feel the same way. This issue has been coming up a lot lately with the burgeoning requests for medical exemptions in the context of COVID-19 vaccine mandates. TO BE CLEAR, I am NOT questioning those employees with actual medical conditions that legitimately prevent them from getting a vaccine – I’m talking about those folks who just don’t want the shot, and get their doctors to write some nonsense note that has no actual basis in medical fact. And frankly, this has been an issue generally beyond the vaccine. (It even showed up in my recent blog post about the employee who wanted to bring his dog to work). So what can we do?
This morning, I read a column by the NY Times ethicist, Kwame Anthony Appiah, in which he addressed a question regarding an employee who stated that she was planning to get a note from her doctor to support a non-evidence-based reason for a vaccine exemption. The employer/questioner asked, “What are the ethics of medical practitioners giving bogus medical exemptions?” I was struck by Mr. Appiah’s response, which noted that several ethical violations arise from doctors who know better but accede to their patients’ requests. And Mr. Appiah encouraged the questioner to report the doctor to the state medical board! (Wait, what?!!)
So I called my husband, who happens to be a doctor, to ask him about this idea. He agreed that knowingly submitting a false medical statement would certainly be reportable to the state medical board. More specifically, doctors are subject to standards of professionalism and ethics. (So are attorneys, although many people might dispute that!) The American Medical Association (AMA), which is the primary professional association of physicians, has a Code of Ethics that states, among other things:
A physician shall uphold the standards of professionalism, be honest in all professional interactions, and strive to report physicians deficient in character or competence, or engaging in fraud or deception, to appropriate entities.
(Emphasis added. And let me repeat it – “BE HONEST!!!”)
The Federation of State Medical Boards, in conjunction with the AMA, also “recognizes the importance of medical ethics in guiding the development and practice of physicians, and the vital role that ethics can play in protecting the public interest.” And various states’ medical boards, by law, regulation or otherwise, have adopted or acknowledge the AMA’s Code or similar principles.
Now, when my clients are dealing with a situation in which an employee is requesting a reasonable accommodation (and in the context of COVID-19, an medical exemption from a vaccine mandate), I advise them that they are certainly entitled, under the Americans with Disabilities Act, to get information from the employee’s doctor when the disability or need for reasonable accommodation is not obvious. As the EEOC states in their Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA, this information includes a description of the nature, severity, and duration of the employee’s impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits their ability to perform the activity or activities. Further, the doctor can be required to provide information that substantiates why the requested accommodation is needed. And I suggest using a form (vetted by counsel, of course, to make sure the employer is not asking for more information than permitted) with targeted questions that focus the doctor’s responses, rather than simply allowing them free rein to state whatever they want (or the employee dictates…).
But what about the “bogus medical exemption”? Can we prevent those slimy doctors from lying? Well, no. But we can maybe encourage them to think twice about doing it. So on that form, I suggest that employers could include a “certification” that attests to the truthfulness of the information provided. And employers could even add language around the doctor’s ethical responsibility and (gasp!) the possibility of being reported to the state medical board! So maybe something similar to the following:
I certify that the information provided above is truthful and that, in my professional medical opinion, (patient name) _________________________________________ has the stated medical condition and limitations, and requires the recommended or other accommodation(s). I understand that the submission of information without a legitimate medical basis is a breach of my ethical duties as a licensed physician, and may be reported to the state medical board for possible disciplinary proceedings.
Physician’s Signature Date
And if it truly seems that the doctor has deliberately provided false information, employers could actually report them to the board!
By the way, if the information from the employee’s doctor seems really sketchy, the employer does have the ability to require the employee to see a doctor of the employer’s choice – under certain circumstances. In its Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA, the Equal Employment Opportunity Commission acknowledges that the ADA does not prevent an employer from sending the employee to a doctor of its choice if the employee provides “insufficient information” from their own doctor to substantiate the disability and need for accommodation. Among the reasons that the EEOC lists for why information might be insufficient are that the health care provider doesn’t have the necessary relevant expertise or that “other factors indicate that the information provided is not credible or is fraudulent.” (!!! Right on!) The EEOC cautions, however, that employers should first explain why the information is insufficient and give the employee and their doctor the chance to address the issue. Also, the EEOC suggests the employer should consult with the employee’s doctor before requiring the employee to go to its chosen doctor.
Is some of this (meaning the certification and possible report to the medical board) aggressive? Perhaps. But then again, I’m feeling pretty grumpy about those lying doctors. (You see, it’s not just lawyers who can’t be trusted!)