Taking Work Restrictions Seriously: The EEOC Is Targeting “100% Healed” Policies as Systemic Disability Discrimination
A “100-percent healed” policy refers to a practice or procedure that mandates that an employee be released to work by his physician without any restrictions before he may return to work. For example, if an employee who took FMLA leave for carpal tunnel surgery was released to return to work with a reasonable restriction, e.g., 10 minute break after every hour of prolonged typing, a 100-percent healed policy would prevent the employee from returning to work, perhaps altogether if the restriction becomes permanent.
Such policies can run afoul of the Americans with Disabilities Act (ADA). The ADA requires employers to provide a reasonable accommodation to workers’ with disabilities unless the employer can prove the employee is not a “qualified individual” or that accommodating the employee would cause it an undue hardship. Once an employee claims a qualifying disability and requests a reasonable accommodation, the employer must proceed in good faith and engage in the “interactive process” to identify a reasonable accommodation. Engagement in the interactive process is a key item the courts look for in assessing disability cases. 100-percent healed policies are by their very nature non-interactive.
The EEOC issued Guidance addressing this very issue in 2016. Since then, they have been on the hunt, targeting employers with “100-percent healed” policies. It has taken a hard line approach that any medical certification with a work should be treated as request for reasonable accommodation that would trigger the interactive process. The EEOC has gone so far as to say that they view “100-percent healed” policies as “systemic disability discrimination.”
Having a “100-percent healed” policy or practice is extremely risky. EEOC vs. Nevada Restaurant Services Inc. is a cautionary tale. Last month, Nevada Restaurant Services paid $3.5 million to settle the case. In addition, it agreed to onerous non-monetary settlement terms. For example, the employer agreed to implement a detailed logging system/database to track employee’s requests for disability accommodations with consistent auditing of those logs. In addition, it agreed to give former employees who were dismissed or unable to return per the policy priority for open job positions.
To err on the side of caution, any work slip, note or medical document giving an employee work restrictions should be treated as a request for reasonable accommodation by the employer. Upon receipt, the employer should engage the employee in every step of the interactive process—and document, document, document it.
Another thing an employer can do give the employee taking medical leave some a designation notice. The notice should state he will not be able to return to work unless he can perform the “essential functions” of the job with or without a reasonable accommodation. The notice should specifically lay out or attach the essential functions of the employee’s job, and explicitly state the employee does not need to return from FMLA leave 100% or completely healed without restrictions.
Based on this settlement, the trend in case law, and the priorities of the EEOC, employer should carefully scrutinize their written policies and procedures to make sure they are not expressly, or even tacitly, following a “100-percent healed” policy.
The Americans with Disabilities Act (ADA) not only prohibits discrimination based on disability, but it also requires that employers provide workers with disabilities reasonable accommodations.
And while it's not a per se requirement, the law favors an "interactive process" for determining whether an effective accommodation is available. An employer causing a breakdown in these informal discussions — or refusing to engage in it altogether — can serve as evidence of discrimination.
It's not a terribly complicated idea, but many employers fall short in the execution. The good news, according to David Fram, director of ADA & EEO services for the National Employment Law Institute, is there's something you can do about it. "The interactive process is such an important step for employers," he told HR Dive, and "it’s totally in the employer’s control to get right or mess up.” Here are seven common mistakes.
A federal judge in Florida has allowed a suit by a law student to go forward against the Florida Board of Bar Examiners, alleging that the board violates the Americans with Disabilities Act by requiring candidates with mental health conditions to undergo and pay for invasive procedures.
Title III of the Americans with Disabilities Act (ADA) is designed to ensure that individuals with disabilities have equal access to the goods and services offered by a place of public accommodation.
Q: By now, most businesses have already installed handicap parking spaces and wider doorways as a way to make their facilities more accessible. So can they finally stop worrying about accessibility lawsuits under the Americans with Disabilities Act?
A: Unfortunately, they may not be out of the woods yet. A recent wave of lawsuits and demand letters has been hitting businesses across the United States, alleging that businesses are violating Title III of the Americans with Disabilities Act (ADA) by not providing websites that are accessible to disabled individuals, including those with visual or hearing impairments.
Q: Is this a new law about websites?
A: No, the ADA was enacted in 1990 and mentions nothing about websites. However, the U.S. Department of Justice has taken the stance since 2003 that all websites of companies that are places of public accommodation, including hotels, restaurants and stores, must be accessible for disabled persons. Unhelpfully, the DOJ has not issued an official rule addressing website accessibility for private companies, leaving companies without any official guidance. The DOJ was expected to issue a rule requiring websites for private companies to be compliant with the “World Wide Web Consortium's Web Content Accessibility Guidelines Level AA” — otherwise known as WCAG 2.0 AA. Instead, at the end of 2017, the DOJ withdrew its proposed rule on website accessibility, but at the same time, it announced that it had “long considered” websites to be covered by Title III of the ADA. The lack of an official rule on website accessibility doesn't stop individuals claiming they were denied access to a company's website from suing under Title III of the ADA. Hundreds of such lawsuits have been filed across the county in the last few years, many as class actions. Plaintiffs suing under this law can only seek an injunction, such as a court order requiring the company redesign its website, and not monetary damages. However, plaintiffs can seek attorneys' fees under the ADA.
Q: What is “WCAG 2.0?"
A: WCAG 2.0 is a set of guidelines for making websites accessible to all. People with disabilities access websites in a variety of ways, and common website problems may create barriers for these individuals. For example, a blind person may use screen-reading software, which reads the text of the website out loud to the individual. If the website has used images to convey information without using text alternatives, the screen reading software cannot convey that information and the blind person won't be able to use the website. WCAG 2.0 recommends, for example, providing text alternatives to any non-text images and providing captions for audio content.
Q: What are the courts saying about website accessibility?
A: Without a U.S. Supreme Court or even many circuit court rulings on the issue, the courts are splitting in their interpretations of the ADA, with differing views on whether online-only companies without a physical location are covered, and whether providing a non-online alternative is sufficient (such as a restaurant that has both online and telephone ordering options). The vast majority of rulings have been in favor of plaintiffs, not businesses.
Q: What are other businesses doing about this problem?
A: For some businesses, it makes good business sense to redesign their website to increase the functionality and accessibility of their websites to comply with WCAG 2.0 standards before they are hit with a demand letter or lawsuit, but many factors weigh into this consideration. Companies facing this decision should consult legal counsel for assistance.
Crain's New York Business
There's big business at New York's federal courts in suing companies whose websites are unusable by the blind
The Daily Post
The Travelodge motel in Palo Alto has been hit with a lawsuit from Scott Johnson, a quadriplegic attorney who has sued hundreds of California businesses over violations of disability access law.
The suit demands tens of thousands of dollars in damages for violations found in the two-star motel’s $150 guest rooms and parking lot at 3255 El Camino Real.
Johnson says the lot only has one parking space reserved for those with disabilities where two are required, and the space’s access aisle isn’t big enough to accommodate a wheelchair-accessible van.
The space also isn’t marked with signs bearing the international symbol of accessibility logo or “Minimum Fine $250” or “NO PARKING,” according to Johnson.
Airlines, hotels, and other tourism-related companies are all making upgrades to accommodate this previously underserved community