Have you ever asked an employee for a doctor’s note confirming that the employee is “fully” recovered from an injury or illness as a condition to returning to work? If so, you may be violating the Americans with Disabilities Act (“ADA”).
I have often talked employers off the ledge of demanding that an employee present a “full release”. Ever since George H.W. Bush signed the ADA into law in 1990, it has been risky to assume that an employee must return to “full” duty after surgery, a serious illness or an injury. The employer must try hard to put the disabled employee back to work, but job duties may have to be modified, reassigned or eliminated to reasonably accommodate the worker.
The Equal Employment Opportunity Commission’s guidance, “Employer-Provided Leave and the Americans with Disabilities Act”, released last year, states that an employer is in violation of the ADA “if it requires an employee with a disability to have no medical restrictions—that is, be 100% healed or recovered—if the employee can perform her job with or without reasonable accommodation unless the employer can show providing the needed accommodations would cause an undue hardship.”
Whole Foods was recently sued for not putting Yolanda Toolie back to work when she returned from a spinal fusion with a 10-pound lifting restriction. She says that Whole Foods made her stay on unpaid leave for almost six months until she was fully cleared by her doctor, instead of finding a way to accommodate her restricted ability. After a second surgery, she alleges that Whole Foods fired her because she wasn’t eligible for Family and Medical Leave (which she would have qualified for if she had been allowed to work after the first surgery without the requirement of a “full recovery”).
If these allegations have any merit, Whole Foods could have avoided this suit if it had gone through the reasonable accommodation process with Toolie, a deli clerk, and found a way to put her back to work despite her lifting restriction. Maybe someone else could have lifted the product boxes while she operated the slicer, for example, or maybe she could have transferred to the Whole Foods bakery, where the heaviest thing she would have lifted was a loaf of gluten-free organic brown rice bread.
Putting an employee on indefinite unpaid leave is the accommodation of last resort, since the employee will not receive a salary while not working. Instead of telling an employee to stay home until he is back to 100%, the following reasonable accommodation process should be followed:
- When an employee is injured or ill, the employee may ask for reasonable accommodation, such as performing the job without having to lift more than 10 pounds. But the employee does not have to use the magic words “reasonable accommodation” or “ADA”. You should always interpret a doctor’s note listing any kind of work restriction as an employee’s request for reasonable accommodation.
- Call your employment lawyer at this point to get guidance through the tricky ADA reasonable accommodation process.
- Acknowledge the employee’s request or restriction in writing and schedule a “meet and confer session”.
- Research for yourself what accommodations could be helpful (consult the Job Accommodations Network for ideas).
- Address at that meet and confer session whether the employee can perform the essential functions of his/her job with a reasonable accommodation.
- Ask the employee for ideas of how the essential job duties could still be performed (the marginal job duties have to be transferred away or dropped).
- If the employee cannot perform with essential functions of his/her job even with reasonable accommodation, only then can you look at reassignment to a suitable, vacant, equivalent position. If that doesn’t exist, only then can you look at a vacant lower-level position.
- As a last resort, consider a leave of absence. But you will have the burden of proof to show that there really was no other choice.
- Follow up the meet and confer session with a written response to the employee summarizing the meeting and inviting more input from the employee within a reasonable time period.
- Make a decision on what accommodation should be offered. It does not have to be the one that the employee suggested. It just has to allow the employee to perform the essential job duties. This decision should be communicated in writing to the employee.
- Revisit the accommodation frequently with the employee. You are not done with your ADA duties just by offering one accommodation. The injured worker may need more than one accommodation, or the employee’s recovery may require that the accommodations change over time.
- In general, don’t count on the “undue hardship” defense to help you beat an ADA claim if you fail to reasonably accommodate the employee. That defense is very difficult to prove and rarely protects the employer.