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How much does a 100% healed policy cost? $3.5M for one employer

Posted June 8, 2018

Many employers have policies that appear to be logical, including expecting employees to be able to perform their jobs without issue. Enter a law of which some employers are not aware, or are not aware of its reach: The Americans with Disabilities Act (ADA). Employers need not have employees with disabilities to have the ADA apply. The law includes a variety of provisions that apply to policies and practices. One Las Vegas employer learned this lesson, and it’s a worthy one to relate.

The ADA generally requires employers with 15 or more employees to provide reasonable accommodations to the known disabilities of employees or applicants. As part of providing these accommodations, when employees request a workplace change due to a medical condition, the employer is to engage in an interactive process with the employee, focusing on identifying an effective accommodation.

Since at least 2012, the employer in question had a well-established 100 percent healed practice, requiring employees to have no medical issues before returning to work. Such policies or practices, however, do not allow for reasonable accommodation of qualified individuals with disabilities, one of the cornerstones of the ADA.

This employer also failed to engage in an interactive process with employees, and did not provide accommodations to those who had disabilities or a record of disability; but instead, terminated them.

A couple employees filed suit, and the Equal Employment Opportunity Commission (EEOC) — the federal agency that enforces the employment provisions of the ADA — stepped in. It saw the employer’s practices and policy as systemic, affecting multiple employees, and giving rise to the hefty price tag.

The end result of the claim included $3.5 million in monetary relief, and the employer must also do the following:

  • Eliminate the 100 percent healed policy,
  • Reemploy those interested;
  • Retain an ADA-knowledgeable consultant to monitor the company’s compliance with the ADA;
  • Review other related policies and practices;
  • Create and maintain an accommodation log for any such requests;
  • Provide live and interactive 90-minute training to all non-supervisory employees;
  • Provide live interactive two-hour training for managers, supervisors, and HR employees; and
  • Develop a centralized tracking system for employee requests for disability accommodations.

Anna Park, regional attorney for the EEOC's Los Angeles District Office, which includes Las Vegas in its jurisdiction, indicated that "Besides regularly examining established practices and ensuring that staff is adequately trained, employers must also ensure their decision makers follow through on that training by holding them accountable to complying with the ADA.” While neither the law nor the implementing regulations mandate training, cases frequently result in such requirements.

Takeaways from this case include the importance of ensuring that policies and practices do not violate the ADA, and ensuring that employees are trained to be familiar with actions that can risk violations.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc.

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