Employers like to lean on their well-crafted policies and practices. Normally, this is beneficial and ensures consistency across operations. But, what happens when a company’s policy in an area like the Americans with Disabilities Act (“ADA”), is, well, bad? You guessed it—that’s where the Equal Employment Opportunity Commission (“EEOC”) cashes in! Currently, this is happening with policies requiring employees to return to work 100% healed or to be able to work without any restrictions.
Employers may not hide behind policies attempting to avoid compliance requirements, and those who do are being hit with multi-million-dollar verdicts in this area—a very painful lesson learned. To protect our companies and their coffers, let’s explore basic ADA requirements as outlined via the EEOC to ensure that we eradicate and/or update ADA policies that may enfeeble our organization.
EEOC Position
The EEOC notes that employers with 100% healed policies, i.e. those requiring that employees have no disabilities or medical restrictions to return to work, routinely violate the ADA.[1] Employees returning from medical leave may request reasonable accommodations to enable their return to work. In fact, it is oftentimes these very accommodations that enable these employees to return to their former productive employment. As such, employer policies can not abrogate reasonable accommodations employers are required to provide nor do they eliminate an employer’s responsibility to engage in the ADA’s interactive process with the employee at issue. The EEOC consistently takes employers to task over “100% healed” or “no restriction” policies and wins, as cases discussed in recent months below.
Recent Cases
In June 2018, a large Las Vegas-based gaming company, Nevada Restaurant Services, settled an EEOC disability discrimination lawsuit to the tune of $3.5 million for systemically discriminating against employees based on their disabilities by maintaining a companywide practice that required employees with disabilities or medical conditions be 100% healed before returning to work. The policy did not provide room for the interactive process nor for providing any reasonable accommodations. In addition, Nevada Restaurant Services was charged with firing or forcing employees to quit whom they regarded as disabled, had a record of disability, and/or were associated with someone with a disability.
Also, in June 2018, Regional International Corporation, a commercial truck and trailer dealership in New York, paid $65,000 to settle a disability discrimination lawsuit filed by the EEOC when they fired a truck parts delivery driver when he needed leave for hip replacement surgery because, according to his supervisor, “disabled people could not work for the company because they would not be able to get the work done,” thereby completely disregarding their employer responsibilities under the ADA.
Lastly, in May 2018, St. Vincent Hospital and Health Care Center, Inc. in Indianapolis paid $15,000 for refusing to engage in the interactive process for an employee with lifting restrictions to provide that employee a reasonable accommodation by transferring her to a vacant position for which she was qualified.
Employer Caution
Essentially, the EEOC’s list of disability discrimination wins can go on and on. What’s important here is that employers don’t find themselves on the wrong end of a losing battle. This can be done by avoiding 100% healed policies or enforcing requirements that employees must be able to work without restrictions. Absent an employee’s medical condition posing a direct threat, employers are required to consider whether reasonable accommodations will enable employees to perform the essential functions of their jobs.
As employee leave and ADA policies be complicated and confusing, contact Soule Employment Law Firm at 984-242-0771 to bolster your comfort levels with these topics.
Legal Disclaimers: Jenny Sweet is licensed in the state of North Carolina. This article discusses general principles of North Carolina and federal law. It should not be considered legal advice for a particular factual setting and does not create an attorney-client relationship.
[1] See https://www.eeoc.gov/eeoc/publications/ada-leave.cfm.