So, you get hurt at work or outside of work, your doctor has said you can return to work but you have certain physical restrictions. Your employer says, “sorry, but you have to be 100% healed before you can come back to work.” WHAT CAN YOU DO?
A “100% healed” policy is a per se violation of the ADA. 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 of whether the qualified individual is able to perform the essential functions of his or her job either with or without accommodation.
Because the Florida Civil Rights Act is construed in conformity with the American’s with Disabilities Act and the related regulations and the construction placed on the ADA by the federal courts, a 100% healed policy is also a violation of the Florida Civil Rights Act. If an employer has a policy that employees who have been out on disability cannot return to work unless they have been released to work full duty without restrictions, that “100% healed” policy, is a violation of the Florida Civil Rights Act.
Additionally, the employer must engage in a dialogue to see whether it can accommodate an employee’s disability. “Once an employer knows of an employee’s disability and the employee has requested reasonable accommodations, the ADA and it’s implementing regulations require the parties to engage in an interactive process to determine what precise accommodations are necessary.” Liability for failure to provide accommodations ensues when the employer bears responsibility for the breakdown.
An employer is responsible for a breakdown in the interactive process under the ADA when: 1) the employer knew about the employee’s disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and 4) the employee could have been reasonably accommodated but for the employer’s lack of good faith.
Many employers, while enforcing its “100% healed policy,” will not engage in the interactive process to see if a reasonable accommodation can be made. Instead most employers will inform the employee that they can only return to work when he/she is released to work full duty without restrictions, which is clearly Disability/Handicap Discrimination in violation of the Florida Civil Rights Act.
Please visit Jacksonville employment attorney for more details.