The Equal Employment Opportunity Commission earlier this month re-asserted its position that employers cannot require that a worker demonstrate that she/he is “100 percent healed” before returning to work following a leave of absence.
The federal agency believes that such a requirement violates the Americans with Disabilities Act.
The EEOC announced that Nevada Restaurant Services would pay $3.8 million to settle a class action claim alleging that the company “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.”
But the commission said that “this policy does not allow for engagement in an interactive process or providing reasonable accommodations for disabled employees.”
The agency claimed that Nevada Restaurant Services 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 that employers engage in the interactive process upon being placed on a notice that an employee with a disability requires a reasonable accommodation to perform the essential functions of the job.
If an employee is out on leave due to a medical condition, whether on leave under the Family Medical Leave Act, Short-Term Disability or some other medical leave, and the medical condition could be a disability, the EEOC requires that the employer determine whether return to work under with a reasonable accommodation is possible.
The legal concerns around employees returning to work following a leave of absence are not new.
In 2009, Sears paid $6.2 million to settle a lawsuit filed by the EEOC wherein the agency claimed that the retailer “maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA.”
The Sears case involved employees who were injured at work, and after spending time on leave pursuant to worker’s compensation programs, were denied reasonable accommodations that would have put them back to work.
Instead, the employees were terminated when their leaves expired, even though some requested only a brief extension of the leave.
The EEOC also announced a series of ADA settlements in 2015, claiming that employers were engaging in similarly illegal inflexible leave policies without considering reasonable accommodations.
In these cases, the EEOC alleged that the employer failed to accommodate employees who tried to return to work after medical leaves of absence. The EEOC said that the employer ignored their requests to return to work or required them to return only if they could perform full, unrestricted duties without any accommodations.
Employees who take protected leave under the FMLA, short-term disability policies, worker’s compensation or even long-term disability cannot automatically be terminated or denied a return to work merely because their leave expires and they cannot perform the job without accommodations.
The law requires that the employer engage in the interactive process to determine if any accommodations can be provided so that the employee can perform the job. This may include an additional protected leave of absence.
Employers are entitled to medical documentation of the need for accommodations.
Indefinite leave is not a reasonable accommodation.
For example, an employee whose FMLA expires after 12 weeks, and is unable to return to work without reasonable accommodations, cannot be automatically terminated if the employee’s medical condition would constitute a disability. The employer needs to engage in the interactive process to determine if a reasonable accommodation can be provided, which might include additional leave.
However, if the medical documentation in response to this conversation indicates the employee’s return date is uncertain, the employer would not be required to provide the additional time. Indefinite leaves of absences are not reasonable accommodations under the ADA.
If the employee’s medical documentation indicates that the employee requires a certain amount of additional time off (for instance, two months), the employer is not required automatically to provide for the additional time off.
The ADA requires that the interactive process occur, and that the employer consider whether it can provide the time off as a reasonable accommodation. This is a case-specific analysis.