Do you know what happens when you maintain a policy or practice that requires an employee to return to work without restrictions or “100% healed”? You pay. A lot.
Just ask Brookdale Senior Living Communities. Brookdale employed Bernadine, who suffered from fibromyalgia. According to the EEOC, Brookdale refused Bernadine’s accommodation requests for a temporary modified work schedule, an ergonomic chair, and adjustments to the lighting in her office.
The EEOC also alleged that the Company required Bernadine to remain on “full FMLA until she [was] fully released.” In other words, she could only return if she was able to perform her job without any restrictions or accommodations. Brookdale later terminated Bernadine, contending that the employee caused a breakdown in the reasonable accommodation process.
The EEOC later brought suit on behalf of Bernadine, claiming that the Company’s failure to accommodate and its alleged requirement that Bernadine return “fully released” violated the ADA. Access the EEOC’s lawsuit here.
Of course, these are simply the EEOC’s allegations, and we’ll never get to the truth, since Brookdale and EEOC agreed to settle the case before any discovery occurred. As part of the resolution, as explained in an EEOC press release, Brookdale is required to:
1. Pay $112,500 to Bernadine as alleged back pay and alleged compensatory damages.
2. Train all local employees and managers on the ADA’s requirements, including the need to provide reasonable accommodation to qualified individuals with disabilities.
3. Report to the EEOC if there are any complaints of disability discrimination or retaliation.
What’s the Problem with a “Fully Released” Approach?
Whether or not Brookdale engaged in the conduct alleged by EEOC, this scenario is instructive. When employers require that employees be “fully released” or “100% healed” before returning to work, the far majority of courts have found that these policies and practices discriminate against employees with disabilities who may be able to perform the essential functions of their position with or without a reasonable accommodation. To be clear, the ADA requires employers to make an individualized assessment when deciding whether an employee can return. When employers implement a “100% healed” policy, most courts find that employers improperly bypassed the individualized assessment process. Under these policies, the employer simply presumes that the employee is unable to perform the duties of his or her job without properly considering whether the employee’s restrictions can be accommodated. And such an approach raises the ire of the EEOC.
At a minimum, the problem with this practice is two-fold: 1) it bypasses the process requiring an employer to make an individualized assessment under the ADA to determine whether an accommodation can be provided to help the employee return to work; and 2) it increases the chance that the employer will have found to perceive the employee as disabled.
Insights for Employers
All too often, I come across my clients’ policies or practices that require an employee to return to work only after they are 100% healed or without restrictions. Here’s my periodic reminder to employers: STOP!
Enforcing these types of policies or requiring evidence that employees can return to work “without restrictions” takes on a tremendous amount of risk. Far too much risk, in my opinion. Therefore, employers must re-evaluate these practices and implement policies that provide for individualized assessments of an employee’s ability to return to work with or without a reasonable accommodation under the ADA. In light of the EEOC’s recent litigation in this area, including the most recent one against Brookdale, this approach is imperative.
Naturally, this means employers also must do an effective job of obtaining medical information to which they are legally entitled so that they can make the most informed decisions about: 1) the employee’s ability to return to work; and 2) whether an accommodation may help the employee perform the job. Thus, in the context of FMLA, employers should engage in a consistent and regular practice of requiring all employees returning from FMLA leave to provide a fitness-for-duty certification from their health care provider that confirms their ability to return to work and perform the essential functions of their job, with or without a reasonable accommodation, and inviting a conversation about what assistance they might require to return to work. If you remember the report of my presentation with EEOC Commissioner Chai Feldblum last year, this communication is critical to remain compliant, and it should come early and often.
Jeff Nowak is a Partner at the law firm of Franczek Radelet and serves as co-chair of the firm’s Labor and Employment Practice and was named by Law Bulletin Publishing as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012. Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff is the author of the firm’s highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2014) and was also voted the No. 2 Labor and Employment blog by LexisNexis.
The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.