Managing workers' medical restrictions: The 'alphabet soup' of statutes
How one company's policy requiring employees be approved to work by a physician without any restrictions ran afoul of the EEOC.
Handling an employee’s medical or mental condition, especially one that requires a gap in working, is complicated and stressful for everyone involved, including the HR representative, well-meaning supervisors and the employee themselves. These incidents usually prompt responsibilities under the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), various workers’ compensation statutes, and multiple state laws. In actuality, it’s definitely possible that each of these laws will be in place, all at the same time. Depending on the circumstances, the Pregnancy Discrimination Act (PDA) could also bubble up in this statutory alphabet soup.
Related: Expanding paid-leave regulations make workers’ comp more complicated
Whether the matter involves only a single statute or a laundry list of laws, workplace policies in place may cause serious confusion for employers. A group of health care facilities in upstate New York, Absolut Care, recently learned this the hard way. The company’s purported “100-percent healed” policy, which requires an employee be approved to work by a physician without any restrictions before returning to work, was central to the controversy. The existence and implementation of this policy led to a $465,000 settlement filed by the Equal Employment Opportunity Commission (EEOC) on behalf of multiple employees who were disabled or pregnant.
Seemingly non-discriminatory policy leads to massive settlement
The EEOC alleged that Absolut failed to accommodate disabled workers, subjected them to unnecessary medical tests, and treated pregnant employees less positively than non-pregnant employees. The biggest issue, however, seemed to be the company’s policy that barred disabled employees from returning to work unless they could do so without any medical restrictions.
At first look, this result may seem puzzling. After all, doesn’t an employer have the right to require an employee to be able to perform all the essential functions of the job, especially if that requirement treats all employees the same way? Simply put, yes – but with restrictions.
Companies should conduct individualized assessments
In the Absolut case, however, the main problem is that the employee was required to perform those duties with or without a reasonable accommodation. With a policy that required an employee to be “100-percent healed” before returning to work, Absolut skipped the critical step of learning if those employees could perform essential job functions with a reasonable accommodation. If effective reasonable accommodations existed, the employer had a legal obligation to offer one. And, in this case, they didn’t.
The Absolut example highlights an important point; the failure on the company’s part to at least consider possible accommodations before concluding that an employee cannot perform a job likely violates the law. The employer has a duty to consider, and even research, feasible accommodations even if the employee does not expressly ask for one. Instead, the employer should have recognized the need to consider an accommodation, especially because they have a legal obligation to do so.
In Absolut’s case, the EEOC specifically challenged the employer’s denial of employee leave (i.e., time off) as an accommodation. Besides the “100-percent healed” policy itself, this scenario also highlights the importance of training supervisors to spot potential accommodations issues before they become a problem, and then ensuring they confer with their human resources representatives.
Managing the alphabet soup of statutes
So with the Absolut case in mind, what can employers do to better protect their employees and themselves in these situations? First, understand the fundamentals of these laws; these statutes all prohibit discrimination or retaliation against employees who exercise related rights. Wherever possible, supervisors should not get involved in evaluating or even seeing the details of an employee’s medical or mental conditions.
Next, identify and focus on the requirements that make each statute unique: the FMLA, for example, provides job-protected leave and benefit protections when applicable. The PDA ensures that pregnant employees are not treated differently than non-pregnant employees in any respect (and although pregnancy itself is not a disability, some complications of pregnancy are protected by the ADA). State workers’ compensation statutes provide medical services and some income replacement for employees who experience workplace illness or injury.
Finally, the ADA actually requires you to provide reasonable accommodation to an otherwise qualified applicant or employee, if the accommodation would enable the employee to perform the essential functions of the job. Additional job-protected leave, beyond the requirements of the FMLA, may be considered a reasonable accommodation. Concentrating on these distinct requirements, which often apply simultaneously, can help companies avoid overlooking any of its legal duties.
It is vital to gather complete information and involve subject matter experts, like HR representatives, as soon as issues like this emerge. Involving HR early also helps you ensure consistency in responding to such circumstances. It is crucial to develop a paper trail to help demonstrate that all alternatives (and legal duties) were considered before making any final decisions, especially if the decision is unfavorable to employees.
As a final point, consistent application of these practices can help employers manage troublemakers and others who may abuse their rights.
Kevin Troutman, is a partner in Fisher Phillips‘ Houston office. Troutman focuses his practice on litigation and providing day-to-day advice regarding a variety of employment and people management issues.
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