It may seem logical that an employer that is concerned about its employees’ health may require employees who have been out on medical or maternity leave to be fully healed before returning to work so as to protect against a re-injury. But, such a requirement may give the employee a claim that the employer has violated the Americans With Disabilities Act (commonly referred to as the “ADA”).
The problem under the ADA, including the 2008 amendments that further strengthened the ADA, is that a 100% healed requirement may prevent an employee from returning to a position that the employee is fully or mostly capable of performing. For example, a cancer patient may be well enough to return to work but not 100% healed. Or the employee may be well enough to return to work on a part-time basis or with some other accommodation while still recovering, and the sort of accommodation needed by the employee might cause little or no burden to the employer. Yet, a “100% healed” rule would prevent such an employee from returning to work. The employer that enforces such a rule will thus (1) fail to engage in the interactive process required by the ADA; and (2) by failing to engage in the interactive process, expose itself an accusation that it has discriminated against an employee who is perceived to have a disability.
This means that the wise employer will engage in an interactive process with an employee who announces he/she is ready to return to work following medical leave – and the wise employee will recognize that the employer should be provided sufficient information about the employee’s condition to be able to participate in a meaningful interactive process to determine whether any accommodation is needed while the employee’s recovery continues. Engaging in such an interactive process should benefit both employer and employee, by bringing the employee back to productive employment.
Both employer and employee should consult counsel for advice regarding the interactive process and development of a reasonable accommodation. The analysis set forth in this article is provided for general understanding only and should not be considered legal advice. Counsel should always be consulted for advice regarding a specific situation.