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Rules Requiring that Injured Employees Demonstrate 100% Recovery Before Being Allowed to Return to Work Likely Violate the ADA
In the past, some employers have required that an injured employee provide a doctor’s slip indicating that they could return to work “without restrictions” or that they were “100% healed” from the injury before the employee would be allowed to return to work. Although employees denied permission to return to work based on such rules sometimes pursued claims against their employers asserting that the employer improperly “regarded” them as disabled, such claims could generally be defended on the grounds that the employer did not perceive the employee as having an impairment that “substantially limited a major life activity,” only that the employee could not be counted on to do his/her particular job.
This defense is no longer available. Under the Americans With Disabilities Act Amendments Act (“ADAAA”), an employer can be held liable under a “perceived disability” theory if the individual can show discrimination because of an actual or perceived physical or mental impairment, whether or not the impairment actually limits or is perceived to substantially limit a major life activity. Thus, a 30 pound lifting restriction that might not rise to the level of an actual disability might nonetheless be the basis of a perceived disability claim if, action because of that restriction, the employer refuses to allow the employee to return to a job that does not require lifting more than 30 pounds, or by assigning the employee to a lower paying office job.
In a case decided in December, 2011 involving the application of a “100% healed” rule applied to prohibit an employee from returning to work, the Seventh Circuit Court of Appeals indicated that “The risk of such a policy is even greater, if not absolute, now that the ADAAA has changed the definition of ‘regarded as’ disabled.”
This conclusion is also supported by provisions in the EEOC’s Final Regulations Implementing the ADAAA indicating that “The determination of whether an impairment substantially limits a major life activity requires an individualized assessment.” Several pre-ADAAA cases held that “100% healed” policies constitute discrimination on the basis of perceived disability because such policies do not allow for “individualized assessment” of the employee’s ability to perform the functions of the job with or without reasonable accommodation.
In light of the changes contained in the ADAAA and the Final Regulations implementing those Amendments, employers that still enforce “100% healed” rules or require proof that injured employees can return to work “without restrictions” should re-evaluate those policies and consider implementing policies that allow for individualized assessments of an injured employee’s ability to return to work with or without reasonable accommodations.