full return to work R.I.P.

Are full return to work policies kosher? A full return to work policy is a policy that says you cannot come back to work unless you are 100%. It is commonly seen in workers compensation areas. I have written for years that this policy is very problematic under the Americans with Disabilities Act. But what do the cases say? A case that just came down from the Seventh Circuit on December 15, 2011 is very instructive. The case is Powers v. USF Holland Incorporated, docket number 07CV 246 (seventh Cir. December 15, 2011).

In this case, the plaintiff was a  long-haul truck driver who injured his back while driving his truck . Following a workers compensation leave, he successfully returned to work as a long-haul truck driver and worked without incident for two years . As the birth of his child neared, he asked to switch to being a city driver .  After the switch, he began having problems with his back due to the physical requirements of the city driver position and asked to switch back . However the collective bargaining agreement did not allow for another change within the year so the employer denied the request. The plaintiff then took a medical leave of absence and later tried to return to work as a long-haul driver presenting the employer with a medical release that limited him to road driver work and limited dock work. The employer would not allow him to return saying that it needed clarification on his medical restrictions and that he could not return to work as a truck driver  unless the employer received a medical release without restrictions.  The plaintiff then sued alleging violations of the Americans with Disabilities Act because of the 100% healed policy.

This is a case that turned on the rules that were in existence before the ADAAA went into effect . The result of which is that the court found that the plaintiff did not have a disability under those rules .  What is important for our purposes is that the court spent significant time talking about 100% healed policies and how they play out under the Americans with Disabilities Act and how they might play out under the Americans with Disabilities Act as amended . The court noted that while 100% healed policies may be problematic under the Americans with Disabilities Act and under the ADAAA, the person who is making those allegations has to be a person a disability first .  Since the plaintiff was found not to have a disability, the plaintiff did not have the ability to allege that the hundred percent healed policy violated the act .  However, the court noted that it would be a different story if the plaintiff was actually disabled .

But what if the ADAAA rules were in effect? (which they are now)  100% return to work policies, which were problematic to begin with,  are now going to be extremely difficult to be  enforced under the Americans with Disabilities Act as amended for two reasons .  First, it is now much easier to be considered a person with a disability under the Americans with Disabilities Act as amended . Second, as the court noted in this case, the ADAAA changed the definition of regarded as having a disability.   No doubt, the court was referring to the fact that under the ADAAA  all the employer needs to do to suffer liability under the act with respect to a regarded as claim is to regard a person as having a physical or mental impairment . With the advent of the ADAAA, it is no longer necessary to show that the employer regarded the employee as having a substantial limitation on a major life activity . Therefore, it logically follows that if an employer has a 100% return to work policy, they must be assuming that the employee has a physical or mental impairment or they would not be insisting on a release at all. Such an assumption would lead to the employee having the right to claim that the employer is regarding  them as having a disability under the Americans with Disabilities Act as amended.

In short, 100% return to work policies, which were never a good idea since the Americans with Disabilities Act went into effect, are certainly not to be recommended now. The only issue should be whether that particular person can perform with or without reasonable accommodations the essential functions of the job.

Finally, the Americans with Disabilities Act is such a comprehensive law and is so all-encompassing it is so critical to make sure you are receiving advice and information that is reliable. Take a look at http://www.riskandinsurance.com/story.jsp?storyId=533345049 , which I just saw today, February 14, 2012. It is accurate as far as it goes. However, for an employer to rely on it as a defense to any adverse action occurring after January 1, 2009, for the reasons stated in this particular blog entry, would be very problematic.