Contributed by Jon Hoag
Employers that require employees to be 100% healed, 100% recovered, or to obtain a “full release” before returning to work often have the safety and well being of the impaired/injured employee in mind. However, if the 100% rule is applied to an employee covered by the ADA, the employer commits a per se violation of the law. The Seventh Circuit recently addressed this issue and sent a reminder to employers that the ADA requires employers to conduct an individualized assessment of the person and the position held to determine if the person is qualified to perform the job with or without a reasonable accommodation. A “100% healed” policy simply does not allow for an individualized assessment as required by the ADA, so it constitutes a per se violation of the ADA if applied to a person covered by the Act.
The Seventh Circuit did rule against the employee because the employee could not establish that he had a disability covered by the ADA. However, it should be noted that the pre-amended version of the ADA applied to the case, so the employee had a heightened burden to establish that he was covered by the ADA. The Seventh Circuit explained that the per se rule did not apply only because the employee was not covered by the ADA.
The Seventh Circuit refused to join other circuits that have declared that a “100% healed” policy can be used as circumstantial evidence that the employer “regarded” the employee as substantially limited in the major life activity of work. The Seventh Circuit believes employers are free to be risk averse and require that its employees are 100% healthy as long as those employees are not covered by the ADA. Given the low threshold to be covered under the Amended ADA – and the uncertainty of whether the Seventh Circuit’s position will ultimately prevail – employers should take the more prudent course…trash the 100% healed policies and conduct an individual assessment in each and every return-to-work situation.
Read the Seventh Circuit’s decision here.