Question: To avoid workplace injuries, we require all employees to be 100-percent healed without any medical restrictions before they return to work after an illness or injury. We think this is an important policy to protect employee safety, but recently heard it might be unlawful discrimination. Is it?
Answer: Yes, we recommend changing your policy. The federal Americans with Disabilities Act (ADA) requires employers to reasonably accommodate an employee with a disability, and that may include an employee with temporary or ongoing medical limitations or restrictions. According to guidance from the U.S. Equal Employment Opportunity Commission (EEOC), a medical certification or doctor’s note containing any kind of physical limitation or restriction due to a disability should be treated by the employer as a request for an accommodation. The accommodation request triggers the employer’s obligation to engage in the interactive process with the employee to determine if there are possible accommodations that would allow the employee to return to work. Each return-to-work situation must be evaluated on a case-by-case basis.
Take Heed: A Recent Settlement
An employer in Nevada recently agreed to pay $3.5 million to settle litigation over its “100-percent-healed” policy (see EEOC v. Nevada Restaurant Servicespress release). The employer’s policy required employees returning from a medical, sick, or disability leave to be 100 percent fully recovered before they were allowed to return to work. The EEOC has been targeting employers with these bright-line policies that prevent employees with disabilities from returning to work in violation of the ADA. Such policies are discriminatory because they establish an unlawful workplace standard that does not allow for reasonable accommodation of qualified individuals with disabilities, which is in direct violation of ADA requirements.