100 Percent Healed Policies – One of the EEOC’s Enforcement Priorities

The U.S. Equal Employment Opportunity Commission (“EEOC”) is cracking down on employers for maintaining leave policies that the EEOC deems a violation of the Americans with Disabilities Act (“ADA”). These so-called “100 percent healed” policies require an employee returning from medical leave to be fully recovered and to work without any restrictions. According to the EEOC’s 2016 guidance on 100 percent healed policies, an employer will violate the ADA “if it requires an employee with a disability to have no medical restrictions…if the employee can perform her job with or without reasonable accommodation unless the employer can show providing the needed accommodations would cause an undue hardship.” The complete guidance can be found here. 

In September, the EEOC filed suit against a national company in the District of Arizona, claiming that the company violated the ADA by discriminating against employees with disabilities through the application of its 100 percent healed policy, among other alleged unlawful practices. According to the EEOC’s complaint, the company refused to engage in the interactive process with employees with disabilities who had exhausted their leave under the company’s 30-day medical leave policy or the Family and Medical Leave Act (“FMLA”). For example, the company allegedly would not approve modified job duties upon an employee’s return from leave, allow more than 12 weeks of leave permitted by the FMLA, allow extended leave past the 30-day medical leave, or allow employees to return to work without being fully healed. The complaint further alleged that employees who required work restrictions upon their return to work, or who did not return at the end of their approved FMLA and/or 30-day medical leave due to medical complications, were either terminated or considered to have voluntarily resigned. The company has not yet filed an answer or otherwise responded to the EEOC’s complaint. The complaint can be found here.

This isn’t the first major lawsuit filed by the EEOC against a national company in regards to these particular policies. A similar case made its way to the District Court for the District of Nevada against a Nevada company on May 24, 2018. The EEOC’s complaint alleged that the defendant company had maintained a well-established 100 percent healed practice which was, according to the complaint, “an unlawful qualification standard that does not allow for reasonable accommodation of qualified individuals with disabilities…” The EEOC also claimed that the defendant company failed to engage in the interactive process and provide reasonable accommodations to employees with a record of disability and/or actual disability and discharged and/or constructively discharged employees the company regarded as disabled and/or had a record of disability and/or actual disability. The case settled by consent decree within one month after its commencement, with the company agreeing to pay $3.5 million, retain an ADA consultant to revise the company’s disability policies, implement ADA training for its employees, develop an accommodation log to document requests for accommodations, establish a record-keeping procedure for the centralized tracking of reasonable accommodation requests and disability discrimination complaints, and to submit regular annual reports to the EEOC verifying the company’s compliance with the consent decree throughout the term of the decree. 

And, in yet a third case – but one which did not reach the litigation stage – the EEOC entered into a settlement agreement with another national company to resolve nine charges of discrimination filed against the company. The charges alleged that the company failed to accommodate employees with disabilities, in violation of the ADA, because it maintained a 100 percent healed policy. As part of the settlement, the company will provide $2.25 million to compensate the nine individuals who filed charges, and provide annual financial support to nonprofit companies which help individuals with disabilities find and keep employment. In addition, the company will revamp its policies to better accommodate employees returning to work after disability-related leave and establish an accommodation and leave management team to further assist its employees. 

All of the above is a reminder that employers may want to consider kicking 100 percent healed policies to the curb, and instead, engage in the interactive process with an employee who returns to work from a leave of absence with restrictions to determine possible reasonable accommodations that will allow the employee to perform the essential functions of the job. Those reasonable accommodations may include modified work schedules and duties, and yes, even an extension of an employee’s exhausted leave under the FMLA and the employer’s own medical leave policies. See Audrey Chastain, 1 Reminder: Leave Can Be an ADA Reasonable Accommodation – Due in: Now (2018), linked here. In addition, employers may want to have ADA-compliant policies in place, effective employee training, and document the interactive process to ensure an accommodating workplace environment, because 100 percent healed policies may lead to 100 percent liability.