A 100%-healed policy may 100% violate the Americans with Disabilities Act and the Family and Medical Leave Act

Last week, we discussed an FMLA policy that your business needs to rip from its employee handbook and burn with fire. This week, we revisit an Americans Disabilities Act policy that should end up on the paper shredder: the 100% healed policy.

If your business has a policy that requires employees on a medical leave of absence — FMLA, for example — to have a healthcare provider certify that they are restriction-free or 100% healed as a condition of returning to work, your business risks an ADA violation if the employee can perform their job with or without reasonable accommodation unless the employer can demonstrate that accommodating the employee would cause undue hardship for the employer or that the individual is a “direct threat” to themselves or others.

Recently, the EEOC announced that it had filed an ADA lawsuit against an employer that maintained and applied a no-restrictions policy.

The EEOC alleges that the employer had a policy requiring an employee returning from any type of medical leave to have a “100% release for work.” In this particular case, the former employee, a divisional controller, suffered a severe rotator cuff injury and fractured wrist in April 2020. His doctor restricted him from using his left arm but cleared him to return to work with restrictions. Indeed, the EEOC claimed that he could perform all the essential functions of his position using his right arm. However, when the employee requested permission to return to work, the company applied its policy requiring that employees return to work completely healed, refused to allow him to work, and then fired him.

If an employee with a disability requests an accommodation to perform the essential functions of the job, the ADA requires employers to engage in an interactive dialogue with them to determine what, if any, accommodation(s) may exist to enable that individual to perform the essential functions of the job absent undue hardship to the business. As courts have said before, an employer telling an employee that they can’t return to work unless 100% healed is “essentially a refusal to provide any accommodations or engage in the interactive process,” which “could certainly be found to violate the ADA’s reasonable accommodation requirement.”

A 100%-healed requirement could also violate the FMLA. While the law permits an employer to require a fitness-for-duty certification, an employee may be able to resume work even if they cannot perform all the essential functions without some help. Thus, a failure to reinstate an employee with an accommodation could interfere with their FMLA rights.  

So, nix that policy altogether and focus instead on engaging in a good-faith conversation with the employee to determine what, if any, accommodation(s) they may still need to return to work to perform the essential functions of their job.