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Don't Condition Return to Work on ‘100 Percent Recovery'

    Client Alerts
  • November 06, 2019

When asked recently about the return of star quarterback Cam Newton, Carolina Panthers coach Ron Rivera responded that he will not play until he is 100 percent recovered from a foot injury. While fine for NFL players, conditioning return to work of an injured or ill employee on full recovery can run afoul of the Americans with Disabilities Act.

Under the ADA, employees do not have to be fully recovered to be legally entitled to return to work. As long as the employees (1) can perform the essential functions of the job, with or without reasonable accommodations, and (2) do not present a direct threat of harm to themselves or a third party, the employer cannot require that they be completely recovered before they return to work. The employer can and should ask for return to work medical certification from the employee’s health care provider, but the employer cannot refuse reinstatement just because the medical information contains restrictions or requests accommodations. The company must perform an analysis of those requests before deciding whether they are effective and present an undue hardship to the business.

Despite these requirements, we regularly see situations where employers refuse reinstatement without medical proof of 100 percent recovery. If the employee files an EEOC charge claiming failure to accommodate under the ADA, we are often placed in damage control mode, absent clear evidence that the employee was not capable of performing those essential job functions given their limitations.