LEGAL: When less is more – problems with ‘100-percent healed’ return-to-work policies

By Jeff Jones
Special to the UCBJ

The art of human resources demands an ability to adapt to ever-changing demands and responsibilities.  While we all would like to believe that we can proactively design policies to meet challenges head-on, reactive policies – ones that are created directly in response to a particular problem – are still very much a necessity.

But reactive solutions are occasionally the cause of more headaches in the long run.  In an attempt to address a business concern, management will frequently push a policy too aggressively, thereby improving the business but threatening legal exposure. And virtually no policy can create legal issues more swiftly and easily than a “100-percent healed” return-to-work requirement. 

A 100-percent healed return-to-work policy is a blanket requirement, made by the employer, that any employee who becomes ill or is injured must be “100-percent healed” before being allowed to return to work. Generally, these policies require that the employee be completely healed, with no restrictions on work duties upon return; in addition, the employee may need to provide a physician’s authorization. Such policies are usually created in an attempt to solve legitimate business concerns – whether it be a rash of re-aggravation injuries or an abuse by employees of light-duty accommodations.  

Return-to-work problems can arise in unexpected ways and at every level of your management or HR team.  A frontline supervisor may text his employee that he cannot come back to work until the doctor “gives the green light.” A new safety director may see a serious loss of productivity due to workers’ compensation injuries and decide to “tighten up” the return-to-work policy.  An in-house nurse may suspect that employees are gaming light-duty assignments to get out of the harder work, and she may try to eliminate those jobs completely. 

The motivation behind these policies is not necessarily improper or abusive, and the intent frequently comes from a place of genuine concern.  The policies are made by employers to address real issues in the workplace.  Regardless of intent, however, such hardline policies will lead an employer to new troubles – as the policies themselves are all potentially illegal.  In attempting to fix one problem, an employer just creates a bigger one.

What Does the EEOC Say?

In May 2016, the U.S. Equal Employment Opportunity Commission (EEOC, or “the Agency”) published a guideline on Employer-Provided Leave and the Americans with Disabilities Act[https://www.eeoc.gov/eeoc/publications/ada-leave.cfm]. While the guideline is meant to provide employers with a big-picture view of responsibilities under the Americans With Disabilities Act (ADA), it specifically addresses 100-percent healed policies:

The EEOC continues to receive charges indicating that some employers may be unaware of Commission positions about leave and the ADA.  For example, some employers may not know that they may have to modify policies that limit the amount of leave employees can take when an employee needs additional leave as a reasonable accommodation.  Employer policies that require employees on extended leave to be 100-percent healed or able to work without restrictions may deny some employees reasonable accommodations that would enable them to return to work.  Employers also sometimes fail to consider reassignment as an option for employees with disabilities who cannot return to their jobs following leave.

Since issuing this guideline, the EEOC has been unquestionably more aggressive with litigating these policies.  In a recent presentation at the 2018 Wimberly Lawson Labor Relations & Employment Law Update Conference, Mr. Edmond C. Sims Jr., District Deputy Director of the EEOC’s Memphis District Office, indicated that if a claimant (i.e., employee) presents information concerning alleged discrimination due to a 100-percent healed policy, the Agency would likely look more closely into the allegations of a charge. An employer is therefore inviting the EEOC to look into its policies and procedures, if it relies upon language that suggests an employee needs to be fully healthy before returning to work.

And this scrutiny is certainly not limited to the EEOC’s Memphis district: the Agency aggressively litigated these policies in 2018.  In May 2018, the EEOC filed a direct suit against a Nevada company for “violat[ing] 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 employer paid $3.5 million in a consent decree and committed to reviewing their policies with an ADA consultant. 

In September of last year, the EEOC sued an Arizona company for “discriminating against employees with disabilities through the application of a 100-percent return-to-work policy.”  The Agency alleged that the employer refused to accommodate employees with disabilities who exhausted their leave, and failed to consider any accommodations such as alternative placements, additional unpaid leave, or modified work schedules. 

Finally, in November, the EEOC sued a Colorado company for a policy of automatically terminating any employee who needed more than 12 weeks of leave.  The employer also refused to allow employees to return to work if they had any restrictions. The employer agreed to a consent decree of $4.85 million, mandatory periodic training, and policy revisions. 

It is clear that the EEOC has made this issue a priority.  But the EEOC is not the only potential source of risk for an employer regarding these policies.  State agencies could also investigate under their own statutes and regulations, and an employee could file suit for retaliation under many different laws, especially in the context of a workers’ compensation claim. 

How Can Employers Handle These Issues?

So how can an employer navigate these issues?  As is the case with any ADA issue, a situation in which an employee seeks to return to work after an injury or period of disability requires a case-by-case analysis of potential accommodation and solutions.  The interactive process is mandated by law, in order to determine whether an employee’s injury can be accommodated. 

The solution to any given situation may not be clear cut. HR should look closely at the limitations any employee has and pay careful attention to the type and nature of the work restrictions placed by a physician.  But the employer’s needs are also relevant. While a job assignment must be within the parameters of an employee’s restrictions, the assignment itself need not be unduly burdensome to the employer’s operations. 

It is important to note that a workers’ compensation injury involving lost time is a potential ADA issue.  Some employers may erroneously believe that the analysis is somehow different if the employee is an injured worker receiving temporary benefits from a workers’ compensation insurer.  If a worker is injured such that she has been taken off work or given restrictions by a physician, the analysis should be the same as an ADA case, even if the injury is temporary.  An employer should not assume that an employee’s injury is menial, or that the effects of the injury are unrelated to the performance of her regular duties. Make sure that any work restrictions placed on the employee by a physician are not violated, by closely analyzing both the job description and the practical movement aspects (lifting/standing/walking) of the job. 

It is also important to get to the bottom of what the employee is actually requesting.  It could be that a simple accommodation would solve what seems like a complex issue. More frequent unpaid breaks could be the answer to a serious health problem. A stool can resolve lower extremity or lumbar complaints.  Less harsh lighting could fix recurring headaches.  Be open and creative with finding solutions to these puzzles.  

Finally, be aware that these accommodations need not be permanent. The length of any accommodation is an important part of the analysis, and goes to the issue of whether the employer engaged in the interactive process and would have been burdened by the proposed accommodation.  A six-week alternative accommodation could be less burdensome and therefore more reasonable than a permanent one.  The EEOC has been clear that an employer need not create new positions in response to a request for accommodation, but fixed-length light-duty work, even if it involves menial tasks, can save you from significant headaches.  Do not forget, however, to involve the employee and to review updated information prior to ending an alternative assignment.  Regardless of your procedure, the EEOC and state laws make it very clear that a “100-percent healed” return-to-work policy is 100 percent likely to cause your business to be unhealthy. 

Jeffrey G. Jones is a regional managing member for Wimberly Lawson Wright Daves & Jones PLLC. He can be reached at jjones@wimberlylawson.com.

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