The dangers of ‘100% healed’ and ‘no restrictions’ policies
The Americans with Disabilities Act (ADA) requires employers to provide a reasonable accommodation to qualified individuals with a disability, unless doing so would trigger significant operational difficulties and/or expenses for the employer. Once an employer is aware of an individual’s disability and the possible need for an accommodation to perform their job, it is the employer’s obligation to discuss with the individual the potential for any accommodation. This obligation may arise when an employee is attempting to resume work after a medical absence and there are restrictions on the employee’s physical capabilities.
What the EEOC Says
In May 2016, the Equal Employment Opportunity Commission (EEOC) issued a Guidance entitled “Employer-Provided Leave and the Americans with Disabilities Act,” which addressed a number of accommodation issues. A portion of that Guidance was devoted to situations where an employee who had been on leave for a disability seeks to return to work. According to the EEOC, any employer that requires an employee to be free of any medical restrictions as a condition of returning to work (also known as “100% Healed Policies”) violates the ADA’s requirement that the employer engage in an interactive process with the returning employee to determine whether there are reasonable measures that could be taken to accommodate restrictions or limitations placed on an employee’s activities. Examples provided by the EEOC of potential accommodations to consider for a returning employee with restrictions include a leave extension, modification of job duties, or reassignment.
What the EEOC has done
The EEOC has enforced this ADA obligation through lawsuits filed against employers. Two examples:
Interstate Distributor Company was a nationwide trucking firm that refused to allow employees with medical restrictions to return to work, without any consideration of potential alternatives to address an individual’s restrictions. The EEOC sued Interstate for its violation of the ADA, and the employer settled the 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.
Nevada Restaurant Services operated slot machines, taverns and casinos in Nevada and Montana. As a consistent practice, the company did not allow employees with disabilities or medical conditions to return to work unless and until they could establish they were “100% healed.” After being sued by the EEOC, Nevada Restaurant Services agreed to pay $3.5 million, revise company disability policies, train supervisors and human resource personnel on ADA requirements, track employee requests for accommodations, and submit periodic reports to the EEOC.
What employers can do
The ADA does not require an employer to return every employee to work after a medical leave. However, the law does prohibit an automatic denial of an individual’s return to work if there are any restrictions in play. Instead – consistent with the ADA’s accommodation obligations – an employer should take a case-by-case approach to each situation. 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. When discussing potential accommodation of a returning employee’s restrictions, the employer can require the individual to provide medical confirmation of the limitations. Also, as part of the discussion the employer can ask the employee such things as:
- A description of the specific accommodations they are requesting
- How long the employee will need the accommodation
- The possibility of other alternative accommodations