Some employers require injured workers to obtain full medical releases to return to work certifying that they are "100% healed" and/or have "no restrictions" of any kind. Do these type policies violate the Americans With Disabilities Act (ADA)?
Courts have consistently found that policies prohibiting injured employees from returning to work unless they can do so "without restrictions" violate the ADA. The Ninth Circuit, in McGregor v. National R.R. Passenger Corp, 187 F.3d 1113, 1116 (9th Cir. 1999), explained the ADA violation as follows:
[a] "100% healed" or "fully healed" policy discriminates against qualified individuals with disabilities because such a policy permits employers to substitute a determination of whether a qualified individual is "100% healed" from their injury for the required individual assessment whether the qualified individual is able to perform the essential functions of his or her job either with or without accommodation.
Other courts have been no less emphatic:
- Henderson v. Ardco, Inc., 247 F.3d 645, 653 (6th Cir. 2001)("All courts that have examined the question . . . agree that a 100% rule is impermissible as to a disabled person.")
- Hutchinson v. UPS, 883 F.Supp. 379, 397 (N.D. Iowa 1995)("Such a policy would on its face 'discriminate against a qualified individual with a disability because of the disability of such individual in regard to . . . terms, conditions, and privileges of employment.'")
- Bearshield v. John Morrell & Co., 570 N.W.2d 915, 923–924 (Iowa 1997) (evidence could support finding that employer perceived plaintiff as having disability if its refusal to allow plaintiff to return to work was based on its fear of higher costs, as reflected by company's “100% healed” policy, rather than on individualized assessment, as required by ADA)
- Warmsley v. New York City Transit Authority, 308 F. Supp. 2d 114, 122 (E.D.N.Y. 2004) (“Courts have ‘consistently found’ that such ‘100% healed’ or ‘fully healed’ policies violate the ADA")
- Meling v. St. Francis College, 3 F. Supp. 2d 267 (E.D.N.Y. 1998) (finding such policy “simply defies the ADA,” and justifies jury's punitive damage award)
- Heise v. Genuine Parts Co., 900 F.Supp. 1137, 1154 n.10 (D. Minn. 1995)(holding that a "must be cured" or "100% healed" policy is a per se violation of the ADA because the policy does not allow a case-by-case assessment of an individual's ability to perform essential functions of the individual's job, with or without accommodation)
- Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 698-99 (7th Cir. 1998) (general physical fitness criterion, like “100% healed” and “must be cured” policies violate the ADA)
