A Human Resources E-Alert
A client recently called about an employee complaining that she was ready to return to work but was not being permitted to do so. This particular employee had suffered an injury caused by her diabetes. The client's policy, I learned, was to require that an injured or ill employee return to work "without any restrictions." I explained to the client that this policy was problematic and needed to be revised particularly in light of the amendments to the Americans With Disabilities Act (ADA) which expands the number of conditions which fall within the protection of the ADA. I also explained that the Equal Employment Opportunity Commission recently targeted a grocer having the same type of policy which resulted in a 3.2 million settlement.
In fact, for those employees with ADA disabilities, when an employee is unable to return to full duty but wants to return to work, the employer is obligated to engage in the interactive process to determine if the employee is limited in performing essential or marginal functions of his/her job and whether a reasonable accommodation can be found to accommodate those limitations on performing the essential functions. Employers, however, are not required to remove essential functions of the job or to create a new job for the employee.
Here, the client was able to engage in the interactive process with the complaining employee and promptly return her to work. We also assisted them in revising their return to work policy so that it was compliant with the ADA.