Employers should abandon '100 percent healed' return-to-work policies

Posted by Charles Middleton on 08/17/2018

Q: 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. Why so?

A: It's not uncommon for employees on medical leave to return to work with some sort of medical restriction placed on them. For example, a physician may restrict the amount of weight a person can lift, the amount of time they can work before they need to take a break, or even the number of hours a person can work in any given day. Under the Americans with Disabilities Act, employers are required to provide a reasonable accommodation to qualified individuals with a disability, unless doing so would pose an undue hardship or pose a direct threat to the safety of the employee or others. 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.

Q: Are “100 percent healed policies” common?

A: They 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. 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.

Q: What is the EEOC doing to enforce this guidance?

A: 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.

Q: What steps should employers take to avoid being the subject of a similar lawsuit?

A: If an employer has a “100 percent healed” or similar type policy, they need to abandon it immediately. In all instances, employers should 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. 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.

PAULA BURKES, BUSINESS WRITER

Published The Oklahoman, August 17, 2018