Can My Employer Force Me To Stay On FMLA Leave Until I Can Return With No Restrictions?

Many employers have Family and Medical Leave Act (FMLA) policies, or even just regular medical leave policies, that require employees to be 100% recovered from an injury and have no restrictions before the employee is allowed to return to work. Employers enact such policies because they don't want to have to deal with further injuries at work and a resulting workers' compensation claim. Those policies are possibly illegal and can lead to employment discrimination lawsuits.

Most courts have concluded that "100% healed" or "no restrictions" policies discriminate against disabled employees who might otherwise be able to perform the essential functions of their job with or without a reasonable accommodation in violation of the Americans with Disabilities Act. The ADA mandates that employers make an individualized assessment when evaluating whether and when an employee can return to work following medical leave. The majority of courts that have confronted this issue have ruled that such employer policies avoid the individualized assessment requirement and violate the ADA. Those courts reason that these policies represent an assumption by the employer that employees cannot perform their job duties while avoiding the question of whether a reasonable disability accommodation properly could address the employee’s restrictions.

The Equal Employment Opportunity Commission's disability discrimination policies echo the courts' position on this issue. The EEOC maintains that employers have an obligation to communicate with employees on leaves of absence and evaluate their ability to return to work at the conclusion of their medical leave. In fact, the illegality of "100% healed" or "no restrictions" policies was part of a group of warnings that the EEOC issued to employers during a June 2011 public hearing concerning the ADA and medical leave.

There's a wrinkle to this aspect of ADA law though. These policies are only an issue if the employee can prove an actual or perceived disability. That's because the ADA's requirement for reasonable disability accommodations, which is what "100% healed" or "no restrictions" policies violate, only protect individuals with a disability. If the employee cannot demonstrate an actual or perceived disability, there's no disability for the employer to accommodate, the "100% healed" or "no restrictions" policy is not illegal, and there's no claim. Luckily, it's become easier to establish an actual or perceived disability since the passage of the American With Disabilities Act Amendments Act. As one federal appeals court noted, “[t]he risk of a [100% healed] policy is even greater, if not absolute, now that the ADAAA has changed the definition of ‘regarded as’ disabled.”

Employees also bear some responsibility for assisting in the individualized assessment regarding whether they can return to work after a medical leave. In fact, in 2014 the United States Court of Appeals for the Eighth Circuit, which includes Iowa, considered an employer policy that required employees "to IMMEDIATELY provide a copy of the release to your supervisor to determine your return to work date. Employees who fail to return to work as designated are considered to have resigned." An employee was fired for noncompliance with that policy. He alleged that the policy violated the ADA. The court disagreed and ruled that the employer's policy was legal and the employee was legally fired for failing to comply with it.

Harley Erbe