A recent consent decree between the U.S. Equal Employment Opportunity Commission (“EEOC”) and American Airlines Inc. and Envoy Air Inc. takes direct aim at the legality of employers’ “100% return-to-work” policies which require that an employee be restriction-free before returning to work from a medical leave of absence. Pursuant to the consent decree, entered into on November 3, 2017, the same day a complaint was filed in federal court in Arizona, American Airlines and Envoy Air (the “Airlines”) will pay $9.8 million to settle the claims asserted in the lawsuit.
The complaint, which was filed by the EEOC on behalf of a putative class of disabled employees and former employees of the Airlines, claimed that the Airlines violated the Americans with Disabilities Act (“ADA”) by refusing to accommodate employees with disabilities, terminating employees with disabilities, and failing to rehire employees. By way of background, the ADA requires employers to provide individuals with disabilities with reasonable accommodations that will enable them to perform the essential functions of their job. The complaint alleged that the Airlines failed to meet their reasonable accommodation obligation under the ADA by maintaining a 100% return-to-work policy, in place since at least January 2009, that required employees on a leave of absence for medical reasons to be without work restrictions before they were permitted to return to work.
The complaint alleged that the Airlines had a policy that required employees who were no longer able to do their job without reasonable accommodation to find other jobs, apply for other jobs, or to compete for other jobs, without providing the option of non-competitive transfer or reassignment as a reasonable accommodation.
According to the complaint, by requiring employees to be 100% healed upon their return to work, Defendants were violating the ADA and limiting aggrieved individuals with conditions such as back injuries, cancer, lupus, asthma, knee injuries, abdominal injuries and strokes who were qualified to perform their jobs with or without an accommodation.
In addition to the $9.8 million settlement payment, the Airlines agreed to adopt a policy and/or practice to assist disabled employees with the reassignment process for reasonable accommodation purposes, and to differentiate between essential and marginal job functions when determining whether a reasonable accommodation can be made.
The Airlines also agreed not to adopt or enforce a policy or practice that “prohibits employees from continuing to work or returning to work, solely because the employee has medical restrictions…[or] places restrictions on employees more restrictive than those proposed by the employee’s personal physician, unless the employee has had more restrictive restrictions assigned to him or her by an Independent Medical Examiner.”
Furthermore, the consent decree mandated both Airlines identify an employee to be the designated ADA Coordinator, explaining such person must have expertise in the ADA, EEOC compliance, human resources, and personnel matters. The ADA Coordinator would be responsible for a number of tasks including assisting with creating and implementing ADA training and evaluating whether any changes to the Airlines’ policies and procedures adequately protect employees with a disability from disability discrimination, harassment, or retaliation. Companies that do not already have someone performing this function may consider exploring this option to ensure consistent processes for handling reasonable accommodation requests.
Although the Airlines did not admit liability on the EEOC’s claims, employers should take heed of the result and, in particular, the EEOC’s position regarding 100% return to work policies. Accordingly, employers should think twice about implementing policies that may require employees to be without restrictions before returning to work from a medical leave of absence. In addition, employers should review existing policies and practices to assess their risk of finding themselves in the sights of the EEOC, or a private plaintiff or class of plaintiffs, for failing to accommodate employee disabilities by imposing potentially unlawful return-to-work requirements. Rather, the inquiry should focus on whether the employee can perform the essential functions of the job with/without accommodation. See generally Warmsley v. New York City Transit Auth., 308 F. Supp. 2d 114, 121 (E.D.N.Y. 2004).
Thus, while employers should always want employees to give 100%, this is one area where employers should settle for less.