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Apr 2007
17
April 17, 2007

100% Healed Policies: Closing the Door on an Injured Employee May Open the Door for Legal Challenges

What is a "100% healed" policy?

Managing employee leaves of absence and the return-to-work process can be very difficult. In an effort to create a bright-line rule, some employers require that before an injured employee returns to work, he or she must be “100% healed.” These policies also are referred to as “fully healed” policies and they require that the employee be fully cleared of any restrictions before resuming his or her job duties. Although these rules might look like an attractive way to administer the return-to-work process, they often open the door for legal challenges.

What is the legal challenge?

"100% healed" rules have faced several recent court challenges with poor success. A number of courts have held that a “100% healed” policy is an automatic violation of the Americans with Disabilities Act (ADA), or at least evidence of disability discrimination. These courts take the position that a "100% healed" policy discriminates against employees with disabilities who could perform the essential functions of the job with or without a reasonable accommodation. Because the ADA requires the employer to make an individualized assessment when deciding whether an employee can return, a "100% healed" policy bypasses this process. Under these policies, the employer simply assumes that the employee is unable to perform the duties of the job without even considering whether the employee’s restrictions can be accommodated.


There is a further legal trap in a "100% healed" policy. Some courts also have concluded that even if the employee is not "disabled" under the ADA, by adhering to a "100% healed" rule, the employer might unlawfully be regarding or perceiving the employee as disabled, thus triggering protection under the ADA. This is because the ADA offers protection to not only individuals with disabilities but also those perceived to be disabled.

What should employers do?

Just as they do when faced with a request for a workplace accommodation, employers should make individualized assessments when deciding whether to return an employee from a medical leave. Instead of blindly adhering to a "100% healed" rule, the employer should assess whether the returning employee can perform the essential functions of the job, despite the medical restrictions. If the employee's restrictions prevent the employee from doing so, the employer must then consider whether there are reasonable accommodations that would permit the employee to perform the essential functions of the job.

For example, if an injured employee is medically released to return to work with a 40-pound lifting restriction, the employer may not refuse to bring the employee back on the basis that the employee is not fully healed. Rather, the employer must first identify the essential job functions and ask whether the employee can perform those essential functions despite the lifting restrictions. If so, the employee should be returned to work. On the other hand, if the employee’s job duties involve lifting more than 40 pounds, the employer must then ask whether it can reasonably accommodate the restriction. If the employee is called upon to lift 40 pounds or more only once or twice a day, that lifting requirement may not be essential to the job and it may be a reasonable accommodation to assign those lifting duties to another employee. If the employee has to lift 40 pounds or more on a much more frequent basis, can the weight be broken up into smaller loads? Alternatively, is there some lifting mechanism that can get the weight to the required height? There are undoubtedly other accommodations that the employer might also consider, but the key is to go through this analysis before deciding what to do with the employee.

If you have any questions about leave or return-to-work policies, ADA compliance, or any other employment law matter, please contact any member of our Labor and Employment Law Practice Group.
 

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