“Ask Sarah” Column

Dear Sarah,

Our employee handbook has a policy which says if an employee needs time away from work for a medical issue like an illness or injury, they must provide a doctor’s note which says they are released to return to work without restrictions before they can come back. Now we have an employee who says he can come back to work, but his doctor has listed some restrictions in the note. What are our obligations?

Signed,
Not a Doctor

Dear Not a Doctor,

I am glad you asked because this is an area that many employers get wrong, for reasons I do not always understand. The Equal Employment Opportunity Commission’s (“EEOC’s”) position on this has been clear—you have an obligation under the Americans with Disabilities Act (“ADA”) to discuss the employee’s restrictions with him and see whether there is an accommodation you can provide that will enable him to return to work. This process is typically called the “interactive process.”

According to the EEOC, any employer who requires an employee to be free of any medical restrictions as a condition of returning to work (also known as “100% Healed Policies”) violates the ADA’s requirement that the employer engage in an interactive process with the returning employee to determine whether there are reasonable measures that could be taken to accommodate restrictions or limitations placed on an employee’s activities.

The ADA does not require an employer to return every employee to work after a medical leave, but employers are prohibited from automatically denying an individual’s return to work simply because they have restrictions or limitations. Instead, an employer should look at each situation on a case-by-case basis, looking at the nature and extent of the employee’s limitations, the requirements of the job, and the employer’s operations. Employers are not obligated to grant an accommodation that would cause an undue hardship to their operations or that would result in a direct safety concern to the employee or others.

You should do two things in short order – first, begin the interactive process with this employee to see if you can accommodate his restrictions, and second, change your policy language to remove any provisions which indicate that an employee may not return to work with restrictions.

“Ask Sarah” is prepared by Sarah Glaser, Chair of the Firm’s Employment Law Practice Group. If you would like additional information or have questions related to this article or other employment matters, please contact Sarah at 512.322.5881 or sglaser@lglawfirm.com.