100% healed policies = 100% discrimination 3

By V. James DeSimone

For an employee who depends on her job, having to take a disability leave for medical treatment is a frightening prospect.  Picture Cynthia, a 29 year old employee of a major restaurant chain, who suffers from severe and intermittent pain in her hips while walking as the result of a condition stemming from childbirth.  Despite her pain, she performs her job as a server and event coordinator in an exemplary and enthusiastic manner.

After eight years on the job, however, the pain becomes so great that she schedules  surgery on both hips.   Unfortunately, she experiences complications, but Cynthia perseveres through subsequent surgeries and a painful rehabilitation, determined to get well enough to return to work and her normal life.

At each step of the way, she keeps her employer updated on her status, confident that she will be able to do her job with minimal restrictions.  Finally, after an extended medical leave of absence from work, she is ready to go back to the job she loves and on which she depends.

But there is a stumbling block.  She is ready to come back to work and suggests a less physically demanding retail position. However, the Human Resources Director informs her, “don’t come back until you are 100% better,” and Cynthia is never going to be “100% healed.”  She will always have limitations that will require some accommodation from her employer in order to perform her job.

However, she is not deterred.  In anticipation of returning to work, Cynthia schedules a meeting with her supervisors to discuss the modifications she will need, but they cancel it. Then, out of the blue, she receives a letter from the company terminating her employment.  The reason:  job abandonment — failure to return from leave.

Cynthia’s experience is not unique. Employee advocates report that termination after a disability leave or a request for accommodation are two of the most frequent reasons why an employee will contact a lawyer.   According to the Equal Employment Opportunity Commission (“EEOC”), one of the “hottest areas of EEOC litigation right now involves the agency’s efforts to root out inflexible leave policies – particularly those that supposedly eliminate an employer’s legal obligation to explore and make reasonable accommodations for employees returning from medical leaves of absence.”

The California Commission on Health and Safety and Worker Compensation has published a “Helping Injured Employees Return to Work,” a handbook of practical guidance for businesses.    It provides as examples of inappropriate policies:

  • Requiring that injured employees be released to full duty without restrictions or be healed 100 percent before returning.
  • Always terminating an employee if he or she is unable to return to full duty after a specific, fixed period.
  • Delaying discussion of job accommodations until the employee’s condition is permanent and stationary.

Almost all courts that have examined these so-called “100% healed” policies have concluded that they are an outright violation of the Americans with Disabilities Act.   When an employee is out on disability leave, companies must communicate with the employee, preferably in person, in what is called the good faith interactive process.  All attempts to reasonably accommodate the employee to allow him or her to perform the essential functions of the job should be made.

The rules for reasonable accommodations protect all of us.  After all, we never know when one of us or a loved one may become sick or injured and require some form of leave or accommodation.  It’s a shame that it sometimes takes a lawsuit to hold companies accountable when they break the rules.  But what’s clear is this — when it comes to “100% healed” policies, employers should take heed that the justice system is going to hold them 100% liable.

V. James DeSimone

About V. James DeSimone

In October of 2015, after 25 years as a partner in Schonbrun DeSimone, Jim opened up his own law firm, V. James DeSimone Law, located in Marina Del Rey. In 2014, Jim was honored with a CLAY award for California Civil Rights Lawyer of the Year. He has been named a Top Employment Lawyer in California by the Daily Journal for 6 of the past 8 years. He is a trial lawyer focusing on civil rights and employment law and has tried numerous cases to verdict achieving seven figure recoveries for his clients. As a civil rights and employment lawyer, his cases range from wage and hour class actions to individual employment discrimination cases, and to representation of families whose family members with a disability have been killed by police officers. You can find out more about his work at www.vjamesdesimonelaw.com.

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