Why “100% Healed” Policies Will Land You in Trouble with the EEOC

Why “100% Healed” Policies Will Land You in Trouble with the EEOC

There are a lot of employers who require an employee returning to work to have no medical restrictions. Because the Americans with Disabilities Act (ADA) only requires that an employee be able to perform the essential functions of his or her job, requiring someone to be totally “healed” or have no restrictions whatsoever before returning to work could violate the ADA. For example, if an employee’s only medical restriction affects non-essential work duties, and you refuse to return the employee to work, you have potentially violated the ADA. 

For those of you who require a “no restrictions” return-to-work note, take heed of the Equal Employment Opportunity Commission’s (EEOC) guidance under the ADA:

An employer will violate the ADA if it requires an employee with a disability to have no medical restrictions—that is, be “100%” healed or recovered—if the employee can perform [his or] her job with or without reasonable accommodation unless the employer can show providing the needed accommodations would cause an undue hardship. Similarly, an employer will violate the ADA if it claims an employee with medical restrictions poses a safety risk, but it cannot show that the individual is a “direct threat.” Direct threat is the ADA standard for determining whether an employee’s disability poses a “significant risk of substantial harm” to self or to others. If an employee’s disability poses a direct threat, an employer must consider whether reasonable accommodation will eliminate or diminish the direct threat.

Example: A clerk has been out on medical leave for 16 weeks for surgery to address a disability. The employee’s doctor releases him to return to work but with a 20-pound lifting restriction. The employer refuses to allow the employee to return to work with the lifting restriction, even though the employee’s essential and marginal functions do not require lifting 20 pounds. The employer’s action violates the ADA because the employee can perform his job and he does not pose a direct threat.

Example: An employee with a disability requests and is granted two months of medical leave for her disability. Three days after returning to work she requests as reasonable accommodations for her disability an ergonomic chair, adjusted lighting in her office and a part-time schedule for eight days. In response, the company requires the employee to continue on leave and informs her that she cannot return to work until she is able to work full-time with no restrictions or accommodations (though the employer may deny the requested accommodations if they cause an undue hardship). If the employee requires reasonable accommodations to enable her to perform the essential functions of her job and the accommodations requested (or effective alternatives) do not cause an undue hardship, the employer’s requirement violates the ADA.

Bottom line—if an employee who has been off work due to his or her own injury or illness comes back to work with some restrictions, you may need to start the ADA interactive accommodation process. Two key issues will be 1) whether the employee has a disability under the ADA, and 2) whether the employee has restrictions that impact one or more essential job functions. Do not refuse out-of-hand to allow the employee to return to work.