100% healed policy = 100% violation of the ADA

Someone didn’t read my post back in May.

Last night, I read this opinion about an employee-plaintiff whose position required her to conduct several weekly tours of the employer-defendant’s facility. In 2012, the plaintiff fell on a ladder, broke her leg, and took 12 weeks of leave under the Family and Medical Leave Act.

Near the end of her FMLA leave, the plaintiff provided the defendant with all sorts of information from her physician, which detailed a number of accommodations that seemingly would allow the plaintiff to perform the essential functions of her job after her FMLA concluded. In response, the plaintiff claims that one of the defendant’s administrators told her that she could only return to work when she was “100 percent” and did not have any restrictions or require any accommodations.

(Hmm…)

When the plaintiff again asked for some leeway to accommodate her, the defendant sent the plaintiff a letter stating that her medical leave had expired and “return to work is predicated on a fitness for duty certificate without restriction and full time.”

(Is it getting warm in here?)

The following week, the plaintiff and defendant met to discuss her return to work, at which time the plaintiff was told that she could not return until she had “no restrictions” and was “100 percent” in accordance with “corporate policy.”

(Oh boy…)

So, the plaintiff filed a Charge of Discrimination.

(Go ahead, clutch your pearls.)

Then, the defendant put the plaintiff on a medical leave. While on medical leave, the plaintiff provided a work modification note to the defendant. The defendant responded by informing the plaintiff that she still had to come back “100 percent” with “no restrictions.”

(No words.)

Eventually, before the plaintiff could return to work fully healed, the defendant axed her.

I think we all know where this is going. But, let’s hear it from District of Massachusetts Judge Mark G. Mastroianni:

A jury could also find Plaintiff requested, and Defendant failed to provide, a reasonable accommodation. Although Parker ultimately agreed with Plaintiff that a sixty-pound lifting requirement was unnecessary, Lomastro repeatedly stated Plaintiff could not return to work until she had “no restrictions” and was “100 percent.” Such statements—essentially a refusal to provide any accommodations or engage in the “interactive process”—could certainly be found to violate of the ADA’s reasonable accommodation requirement.

You got that? The Americans with Disabilities Act requires an employer to provide a reasonable accommodation to a qualified individual with a disability, unless doing so would create an undue hardship. Once an individual identifies to her employer that she has a disability and needs an accommodation to perform the essential functions of the job, the onus is on the employer to engage the employee in a good-faith, interactive dialogue to discuss possible accommodations.

What the court is saying here is that not only is a 100%-healed policy antithetical to the interactive process, it may be an automatic violation of the ADA.

So…

When an employee wants to take leave under the FMLA for her own serious health condition, here’s what you do:

Give the employee an FMLA notice in which, among other things, you request updates from her at reasonable intervals during the leave
Get a completed FMLA certification from the employee
Provide a designation notice, in which you not only require the employee to provide a fitness-for-duty certificate to return to work, but affirm that she can perform the essential functions of the job with or without accommodation
Make sure that the designation notice includes a list of the essential functions of the employee’s job
The employee does not need to return from FMLA leave 100% healed
The employee does not need to return from FMLA leave completely healed
The employee does not need to return from FMLA leave with no restrictions
Instead, treat the employee’s FMLA request as a request for an accommodation under the ADA. FMLA leave is the first accommodation. Then, continue the good-faith, interactive dialogue with the employee to determine what, if any, accommodation(s) she may still need upon her return to work to perform the essential functions of the job.