ADA & Disabilities, Leave Management, Policy, and Compliance

Employers Continue to Face Lawsuits Over 100%-Healed Policies

Employers continue to face both federal charges and private lawsuits over policies that require workers to be fully healed from injuries before returning to work. According to the U.S. Equal Employment Opportunity Commission (EEOC), this means employers aren’t aware of their accommodation responsibilities under the Americans with Disabilities Act (ADA).

cleared to work

Class Action Suit

In a recent filing, a Whole Foods employee, “Maddie,” alleged that the company prevented her returning from medical leave because she had lifting restrictions.

According to the complaint, Maddie underwent a spinal fusion procedure. After recovering, her doctor released her to return to work with a 10-pound lifting restriction. Whole Foods, however, said she could not return to work until she was fully cleared by her doctor. After several months on unpaid leave, she was cleared and returned to work.

Maddie eventually underwent a second surgery and when she had not been cleared to return to work after 6 weeks’ leave, Whole Foods fired her. She did not have the requisite hours to qualify for Family and Medical Leave Act (FMLA) leave, the employer said.

Maddie, however, said that she would have had the requisite hours if not for the employer’s actions: “Whole Foods’ termination of Maddie was a direct result of its refusal to provide her with a reasonable accommodation, in violation of the ADA[.]”

The case, a putative class action, Toolie v. Whole Foods Market Group, Inc., No. 16-10113, is pending in the U.S. District Court for the Northern District of Illinois.

EEOC Action

Safeway recently settled a similar lawsuit with EEOC. The commission alleged that the grocery store put a limit on the time that it would allow an employee to remain on modified duty.

In its suit, the commission said that “Helen,” a food clerk at Safeway, sustained a work-related injury that limited her lifting ability. Safeway initially accommodated her by reassigning her to work at the customer service desk, EEOC said, but it eventually placed her on indefinite unpaid leave, telling her that she had exhausted her time limits for modified duty.

EEOC sued on Helen’s behalf, alleging that the store failed to provide a reasonable accommodation for her disability. To resolve the claims, Safeway agreed to pay $27,000 in damages and rehire Helen. It also agreed to provide her with a hand scanner or other reasonable accommodation to allow her to perform food clerk job duties, EEOC said.

Employer Takeaway

In its 2016 guidance, Employer-Provided Leave and the Americans with Disabilities Act, EEOC says that an employer violates the ADA “if it requires an employee with a disability to have no medical restrictions—that is, be ‘100%’ healed or recovered—if the employee can perform her job with or without reasonable accommodation unless the employer can show providing the needed accommodations would cause an undue hardship.”

Moreover, if there is no reasonable accommodation that would allow an employee to perform his or her current job, the ADA also requires employers to consider reassignment. Leave also can be an accommodation but, as the Whole Foods and Safeway cases illustrate, EEOC considers leave an accommodation of last resort.

When an employee has work restrictions, the EEOC says that nothing prevents the employer from getting creative. The employer can ask why and for how long the restrictions are needed and explore various accommodation options with the employee. Often, the commission says, “there may be more than one way to meet a medical restriction.”

Kate TornoneKate McGovern Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics and currently writes for HR.ComplianceExpert.com and HR.BLR.com. Before coming to BLR, she served as editor of Thompson Information Services’ ADA and FLSA publications, co-authored the Guide to the ADA Amendments Act, and published several special reports. She graduated from The Catholic University of America in Washington, D.C., with a B.A. in media studies.