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Disability Discrimination Attorney Best Answers: Is my employer allowed to screen out individuals with disabilities through standards or tests? Do I have a right to sue my employer if it fires me because I was disabled after returning to work? Can my employer fire me if I return to work after a long leave of absence due to injury and still have medical restrictions?

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Let’s say you shatter your leg in multiple places and the healing process requires several surgeries and moths of physical and occupational therapy after you’re healed. You can’t work during this time period and take a medical leave of absence from your job – pursuant to the Family Medical Leave Act (“FMLA”) or otherwise. Finally, after twelve grueling months you can finally walk, albeit with a cane. You’re excited to return to your job and ask your employer to make some reasonable accommodations so you can work to the best of your ability. You’re shocked when your employer refuses, but you return to work anyway. Then, you hurt yourself again, request time off, and your employer fires you because it says you violated its twelve-month leave policy. What recourse do you have?

Under the Americans with Disabilities Act (“ADA”) an employer cannot use a qualification standard, employment test, or other selection criteria that screens out or tends to screen out individuals with disabilities unless such standard, test, or criteria is related to the job in question and consistent with business necessity. An employer policy that requires employees’ returning from an absence to be free from all medical restrictions or face termination, when applied to a qualified person with a disability, is a per se violation of the ADA. See Steffen v. Donahoe. These “100% healed” policies are a qualification standard under the ADA that employers can’t use because they don’t allow each person to be assessed individually as to whether they are disabled and able to work.

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In a disability discrimination case against United Parcel Serv., Inc. (“UPS”), UPS was accused of using a 100% healed policy to prevent qualified employees with disabilities from returning to work after taking leaves of absence. The employee argued that UPS’s policy violated the ADA because it is a qualification standard that screens out individuals with disabilities and is not job related or consistent with business necessity. For employees to go back to work at UPS after medical leave they had to be able to work without any additional accommodation, which violates the ADA.

UPS contends the ability to attend work regularly and not miss months at a time is an essential job function, an argument that did not sway the district court in UPS’s motion to dismiss. But, the district court dismissed UPS’s motion because, while attendance can be an essential job function, UPS’s return to work policy is a 100% healed requirement and per se impermissible. Thus, regular job attendance might be an essential job requirement but UPS’s policy was a 100% healed or medically cleared requirement for individuals coming back to work. In other words, UPS’s policy required every employee returning from a leave of absence to be free of injury—a medical requirement a returning employee must meet to keep his job with UPS—not that they attend work regularly. UPS’s policy is a qualification standard applicable to those with disabilities so the court allowed the disability claim to continue.

If you return to work after taking a medical leave of absence with a disability, are qualified for the job, and are able to work with a reasonable accommodation, your employer should not be able to violate the ADA by forcing you to work without such an accommodation. Returning to our employee from the beginning of this post, it now seems clear that his or her recourse is seeking the protection of the ADA under the guidance of a qualified, experienced employment discrimination attorney.

Having to live with a disability is difficult enough without worrying about the effect it may have on your job. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. The best option is not to wait. The Spitz Law Firm, and its attorneys are experienced and dedicated to protecting disables employees’ rights under ADA and Ohio law.

Disclaimer:

The materials available at the top of this page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get a work accommodation for my disability?”, “am I disabled under the ADA?”, “what should I do if…” or “can my boss fired me for …”, it would be best for you to contact an Ohio attorney to obtain advice with respect to disability discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney Brian Spitz or any individual attorney.