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Now, don’t say that I haven’t warned you.
A few years ago, I offered 112,500 ADA reasons not to force an employee to stay home until 100% healed. The following year, I told you to 86 the “100% cured” policy for employees returning from FMLA leave, with a reminder a few months later that a 100% healed policy = 100% violation of the ADA.
Some folks just don’t learn.
Like a Nevada employer that just settled with the U.S. Equal Employment Opportunity Commission for $3.5 million to settle a disability discrimination lawsuit. Here’s more from the EEOC’s press release:
According to the EEOC’s suit, since at least 2012, [the employer] violated federal law by maintaining a well-established companywide practice of requiring that employees with disabilities or medical conditions be 100 percent healed before returning to work. This policy does not allow for engagement in an interactive process or providing reasonable accommodations for disabled employees.
The EEOC also charged that [the employer] fired and/or forced employees to quit because they were regarded as disabled, had a record of disability, and/or were associated with someone with a disability.
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.
A 100%-healed policy is not only antithetical to the interactive process; it may be an automatic violation of the ADA.
One notable exception is if the employee’s medical restrictions pose a safety risk to the employee or others. But, even then, the employer must demonstrate that the individual is a “direct threat.” And, still, an employer must consider whether a reasonable accommodation will eliminate or diminish the direct threat.
On a completely unrelated note, I was thinking about blogging about whether a victim of egregious sexual harassment could resort to self-help by effecting a citizen’s arrest of the harasser. If you like that idea for a blog post, email me and let me know. I’d love to hear from you.