News

Employers should abandon ‘100 percent healed’ return-to-work policies

Q&A with Charlie Plumb

published in The Oklahoman | August 17, 2018

The Equal Employment Opportunity Commission has started cracking down on employers who don’t permit an employee to return to work after a medical leave until they have been released by a doctor to resume working without any medical restrictions or limitations. The EEOC recently filed lawsuits against two employers that prohibited their employees from returning to work without giving any consideration to possible options for addressing their medical restrictions. In one case, a nationwide trucking firm settled its lawsuit by paying $4.85 million and agreeing to provide ADA training to employees, report all future employee disability complaints to the EEOC, and keep in place an internal monitor to make sure the employer continued to comply with the settlement terms. The other case settled for $3.5 million with similar terms.

In a business Q&A with The Oklahomanlabor and employment attorney Charlie Plumb said these policies are more common than you’d think, and much more common than the EEOC would like.

“Some employers institute such policies thinking that they may shield the company from risk if after returning to work, the employee’s medical condition is re-aggravated or worsens while on the job,” Plumb explained. “Others prefer the simplicity and ease of administering a black-and-white policy that doesn’t require them to engage in the interactive process, explore possible accommodations, or expend additional time and effort in monitoring the employee’s safe return to work. Regardless of the reason, the EEOC says ‘no’ to these types of ‘100 percent healed’ return-to-work policies.”

According to guidance released by the EEOC two years ago, any employer that requires an employee to be free of any medical restrictions as a condition of returning to work — also known as “100 percent healed policies” — violates the ADA’s requirement that the employer engage in the interactive process to determine whether there are reasonable measures that could be taken to accommodate restrictions or limitations placed on an employee’s activities.

Plumb advised employers to abandon such policies and evaluate each returning employee’s situation on a case-by-case basis.

“The ability to reasonably accommodate a returning employee’s limitations will depend on the nature and extent of their limitations, together with the requirements of the job and the employer’s operations,” Plumb explained. “When discussing potential accommodation of a returning employee’s restrictions, the employer can require the individual to provide medical confirmation of the limitations. As part of the discussion, the employer can also ask the employee for a description of the specific accommodations they are requesting, how long the accommodation is expected to be needed, and the possibility of other alternative accommodations.”