Best Ohio Employment Disability Discrimination Attorney Answer: Even though my doctor says I can do light duty work, can my employer say I must be 100 percent healthy to return to work? Does my job have to work with me if I am able to work but I need accommodations for my disability? Can my boss deny my return to work request?
“My doctor said I can return to work, I just need to take it easy.” “I was hurt at work and had to take time off, but I can still do my job!” “I needed surgery on my knee, but I am ready to return to work, but HR won’t let me!” “I am sick of sitting at home and just want to get back to work, but my supervisor refused to put me on the schedule!” Every day the experienced employment discrimination attorneys at Spitz, The Employee’s Law Firm hear similar stories.
Life happens. Even the most dedicated employees need to take time off from work due to injuries or illness. In fact, there are legal protections for this type of leave under the Family and Medical Leave Act (“FMLA“). As our employment law attorneys have blogged before, FMLA leave protects an employee’s job when they need to take time off from their employment to treat a serious medical issue either of themselves or a family member. (For more information about the Family Medical Leave Act see Can My Boss Control When I Take FMLA? I Need The Top Lawyer In Ohio For Medical Leave Claims!, and Can My FMLA Leave Count Against Me At Work?).
Often when an injury or illness happens the employee recovers enough to return to work but may only be able to do light duty tasks or may need some kind of accommodation for a while before they are back to 100 percent. But what about when the employee tries to return to work but the employer won’t let him or her until they are 100 percent healed? As a Nevada employer recently learned to the tune of $3.5 million, a “100 percent healed” policy is a form of disability discrimination.
The gaming company Dotty’s, which operates a chain of slot machine parlors in Nevada, and across the United States was recently forced to pay $3.5 million in order to settle claims of disability discrimination made by multiple employees. The employees claimed that Dotty’s “100 percent healed” policy was discriminatory against the disabled employees. The federal court case of EEOC v. Nevada Restaurant Services Inc. settled on June 5, 2018 when Dotty decided it was better to take responsibility for their discriminatory actions than to face a jury. This is just the most recent victory won for employee’s rights, and another step to putting a stop to “maximum-leave” and “100 percent healed” policies.
The employees’ Equal Employment Opportunity Commission (“EEOC“) charge against Dotty claimed that Dotty’s “well-established 100 percent healed practice” was discriminatory against disabled employees and was a violation of the Americans with Disabilities Act (“ADA“). (For important warnings about filing with the EEOC, see Top Employment Law Attorney: Do Not File With The EEOC Without Doing This First; File With The EEOC Or Get A Lawyer? Call The Right Attorney; Should I Get A Lawyer To Help Me File An EEOC Charge?; and Should I File With The EEOC On My Own? Call The Right Attorney)
As our employment attorneys have blogged before the ADA makes it unlawful for an employer to “discriminate against a qualified individual on the basis of disability” as it applies to hiring and firing. The ADA also states that unlawful discrimination can be found where the employer is “not making reasonable accommodations.” Examples of reasonable accommodations that employers have been required to offer include acquiring or modifying equipment or devices, offering part time hours or a modified schedule, making the workplace readily accessible to and usable by disabled workers, adjusting or modifying examinations, training materials or policies, and working from home. An essential requirement of the ADA is that the employer engages in an interactive process with the disabled employee. This means that an employer has a duty to discuss the employee’s disability, and possible accommodations that the employer can make to allow the employee to work. (To learn more about the Americans with Disabilities Act see Do I Have A Disability Discrimination Case? And My Employer Will Not Provide Me With A Reasonable Accommodation For My Disability. I Need The Top Disability Discrimination Lawyer In Ohio!).
Under Dotty’s 100 percent healed policy, or what other employers call a 100 percent health policy, workers that were returning from disability leave, medical leave, or sick leave were required to be 100 percent recovered before Dotty would allow them to come back to work. The disabled employees claimed that Dotty’s 100 percent healed policy was illegally discriminatory because it creaated “an unlawful qualification standard that does not allow for reasonable accommodation of qualified individuals with disabilities.”
Under a policy like Dotty’s, a worker who was off work on FMLA leave to have shoulder surgery would not be able to return to work until the employee was 100 percent recovered from the operation. This means that even if an employee’s doctor cleared them to return to work with a few medical restrictions (such as not being allowed to lift items above a certain weight, or needing to wear a sling), an employee would not be considered fully healed and the employer would not allow the injured employee to return to work.
The obvious problems with this kind of a policy is that, depending on what the employee’s position is and what duties are essential to the employees’ job, restrictions such as not being able to lift items above a certain weight might be easy for the employer to accommodate under the ADA. These 100 percent healed, or 100 percent health policies automatically assume that an employee is unable to work without engaging in the interactive process. (For more on the interactive process, see Best Disability Discrimination Lawyer Answer: What Is My Job Required To Do Once I Notify Them Of My Disability?). Further these hard and fast policies do not allow management to consider allowing employees to return to work on a case by case basis, taking into account the essential functions of the employee’s job or what kinds of reasonable accommodations the employer can make to allow the employee to return to work. Employers with policies like Dotty’s often reject an employee’s return to work notes if the employee’s doctor requires any limitations. By simply refusing to allow employees to return to work employers are dodging the interactive process required by the ADA.
The only reason an employer can refuse to allow an employee’s return to work is if the employer can show that because of their medical restrictions an employee is unable to safely perform the essential functions of the job with or without a reasonable accommodation. Even then, the employer must show that they cannot accommodate the employee, and that even with a reasonable accommodation there is still a “direct threat” either to the safety of the employee or to others. If we look back at our shoulder surgery example, if the employee is a lumberjack and because of the shoulder surgery won’t be able to safely handle a chainsaw until they are fully healed then an employer may refuse to allow the employee to come back to work until they are completely recovered. However, even in this situation, the employer must engage in the interactive process and discuss possible accommodations with the employee. This conversation should include the restrictions recommended by the employees’ doctor, as well as what the essential job duties are for the employees’ position.
If the employee is able to safely perform the essential functions of their job with or without a reasonable accommodation than an employer cannot deny their employees return to work request. Denying an employee’s return to work request, when the employee is able to safely perform their essential job duties, even if they are not 100 percent healed is an illegal violation of the ADA. Likewise refusing to engage in the interactive process to discuss accommodations with employees is also a violation of the ADA. If your employer has denied your return to work request when your doctor says you are able to return to work, or if your employer has refused to talk to you about accommodating your return to work needs than you may have a claim. You need to call the right attorney.
If an employer has a formal written policy that limits an employee’s amount of medical and disability leave, or if an employer routinely denies return to work requests that include requests reasonable accommodations, they can be held liable for disability discrimination. Hopefully, the $3.5 million price tag Dolly was forced to play will act as a reminder to all employers that 100 percent healed policies are 100 percent discriminatory, and illegal.
At Spitz, The Employee’s Law Firm we understand that life happens, we also understand that when it does you want to get back to work as soon as possible. If your employer is refusing your return to work request than you need to call the right 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. Call our office at 866-797-6040. The best option is not to wait. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.
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