When an employee is off work for medical or health reasons, it is common for the employer to require the employee to produce a release to return to work. Although such policies are perfectly lawful, employers often get into trouble when they take the policy one step further and require the employee to be “100% healed” or have “no restrictions” before returning to work. Employers often assume that such policies are permissible because they reflect a concern about the safety and well-being of the employee and their coworkers.
If a “no restrictions” policy is applied to an employee covered by the Americans with Disabilities Act (“ADA”), the employer will commit a per se violation of the law by enforcing such a policy. The ADA requires employers to explore whether a disabled individual with restrictions can return to work with or without reasonable accommodations. Stated another way, an employee who is not 100% cleared to come back to work may be an individual with a disability who can perform the essential functions of his or her job if reasonable accommodations are provided.
According to the Equal Employment Opportunity Commission (“EEOC”), one of the “hottest areas of EEOC litigation right now involves the agency’s efforts to root out inflexible leave policies – particularly those that supposedly eliminate an employer’s legal obligation to explore and make reasonable accommodations for employees returning from medical leaves of absence.” http://www.eeoc.gov/eeoc/newsroom/release/6-1-2012.cfm. In a recent case pursued by the EEOC, a medical center required employees on leave to return to work with no restrictions unless their injury or condition related to an “on-the-job” injury. After filing suit in federal court, the medical center settled with the EEOC by changing its policy and agreeing to fully compensate two former employees who were fired because they could not return to work “without restrictions.”
Employers need to confirm that their medical leave policies do not require a “full release” or similar conditions before allowing an employee to return to work. When medical restrictions are produced by an employee, the company should automatically consider whether the employee is disabled under the ADA and whether reasonable accommodations can be provided. It is likely that the employer will have an obligation to meet with the employee and engage in the “interactive process” (talk to them!) to determine whether reasonable accommodations are available. Failing to follow these critical steps can expose the employer to liability under the ADA and under state law.