There must be something in the water. Over the past few months alone, I have reviewed a number of employers' policies and correspondence regarding an employee's return to work from a leave of absence. What has been surprising to me is the number of employer policies that require an employee to return from leave with "no restrictions" or "100% healed." Consider the following requirement, which was embedded in an employer's return to work notice at the conclusion of FMLA leave:
As your FMLA leave is nearly exhausted, we expect you to return to work on April 2, 2012 with a note from your physician stating that you are able to work with no restrictions.
Or take this one, which a third party administrator proposed to one of my clients for use in correspondence sent with the Company's FMLA Rights and Responsibilities Notice:
In addition, [the Company] cannot accept light duty restrictions upon your return to work. If you are unable to return to work without restrictions, you must remain on leave until you are able to return without restrictions.
¡Ay, caramba! Really?
What's the Problem with a "No Restrictions" Approach?
When employers require that employees be 100% healed or have no restrictions upon their return to work, the far majority of courts have found that these policies discriminate against employees with disabilities who may be able to perform the essential functions of their position with or without a reasonable accommodation under the Americans with Disabilities Act. To be clear, the ADA requires employers to make an individualized assessment when deciding whether an employee can return. When employers implement a "100% healed" policy, most courts find that employers improperly bypassed the individualized assessment process. Under these policies, the employer simply presumes that the employee is unable to perform the duties of his or her job without properly considering whether the employee’s restrictions can be accommodated.
At a minimum, the problem with this practice is two-fold: 1) it bypasses the process requiring an employer to make an individualized assessment under the ADA; and 2) it increases the chance that the employer will have found to perceive the employee as disabled.
Not all courts feel this way, of course. Recently, in Powers v. USF Holland (pdf), a federal appellate court found that "100% healed" policies are only problematic if the employee can show he or she is actually disabled or is regarded as disabled. Hmmmm...that doesn't make me feel too comfortable. Interestingly, this decision applied pre-ADA Amendments Act (ADAAA) law and regulations because the facts pre-dated the ADAAA. However, even this conservative Seventh Circuit court warned employers: “The risk of a [100% healed] policy is even greater, if not absolute, now that the ADAAA has changed the definition of ‘regarded as’ disabled.”
The Powers decision certainly echoes the EEOC's position, which has long held that these policies violate the ADA. In fact, late last month, I had the chance to serve as a fellow speaker on ADA and FMLA issues at a DMEC conference with Chris Kuczynski, the EEOC's Assistant Legal Counsel and Director of its ADA/GINA Policy Division. At the conference, Mr. Kuczynski reminded employers that they face significant risk under the ADA if they maintain a policy that requires an employee to return to work without restrictions (for the reasons stated above).
Insights for Employers
Given the much broader regulations implementing the ADAAA, employers that still enforce “100% healed” policies or require evidence that employees can return to work “without restrictions” take on a tremendous amount of risk. Far too much risk, in my opinion. Therefore, employers must re-evaluate these practices and implement policies that provide for individualized assessments of an employee’s ability to return to work with or without a reasonable accommodation under the ADA. In light of the EEOC's recent litigation in this area, this evaluation is imperative.
Naturally, this means employers also must do an effective job of obtaining medical information to which they are legally entitled so that they can make the most informed decisions about: 1) the employee's ability to return to work; and 2) whether an accommodation may help the employee perform the job. Thus, in the context of FMLA, employers should engage in a consistent and regular practice of requiring all employees returning from FMLA leave to provide a fitness-for-duty certification from their health care provider that confirms their ability to return to work and perform the essential functions of their job, with or without a reasonable accommodation.