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Training for Supervisors in Pennsylvania: How to Limit Liability for Employment Issues

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October 02, 2018
Author: David L. Deratzian, Esq.
Organization: Hahalis & Kounoupis, P.C.


LEAVE AND ACCOMMODATION
Don't Ask, but Selectively Tell – Managing Disability Issues in the Workplace
A. Don’t Ask -- Permitted and Prohibited Medical Enquiries
The ADA has specific provisions regarding the propriety of employer-mandated medical examinations and enquiries. The ADA delineates three categories of medical examinations and inquiries: (1) pre-offer; (2) post-offer but pre-employment; and (3) post-employment. 42 U.S.C. §§ 12112(d)(2)-(4). Pre-offer examinations are strictly limited. An employer may not ask disability-related questions and require medical examinations of an applicant until after the applicant has been given a conditional job offer. 42 U.S.C. § 12112(d)(3); 29 C.F.R. §§ 1630.13(a), 1630.14(a),(b). The Appendix to Section 1630.14 states that pre-offer inquiry “must be narrowly tailored. The employer may describe or demonstrate the job function and inquire whether or not the applicant can perform that function with or without reasonable accommodation.” Post-offer but pre-employment examinations, conversely, are broadly permitted, and need not be related to any of the particular functions of a position, nor must they be justified by business necessity. Once a conditional job offer is made, the employer may ask disability-related questions and require medical examinations as long as this is done for all entering employees in that job category. EEOC ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations, p.2. However, an offer must be made in which the employer has evaluated the applicant for all of the non-medical factors and the offer may be contingent only on successful completion of the medical exam. Id. at 17.

The final category, “post-employment,” present difficult and troublesome issues. They are governed by 42 U.S.C. §§ 12112(d)(4), which provides:

(d) Medical examinations and inquiries
(1) In general The prohibition against discrimination as referred to in subsection(a) of this section shall include medical examinations and inquiries.

* * *

(4) Examination and inquiry

(A) Prohibited examinations and inquiries

A covered entity shall not require a medical
examination and shall not make inquiries of an
employee as to whether such employee is an
individual with a disability or as to the nature or
severity of the disability, unless such examination or
inquiry is shown to be job-related and consistent with
business necessity.

(B) Acceptable examinations and inquiries

A covered entity may conduct voluntary medical
examinations, including voluntary medical histories,
which are part of an employee health program
available to employees at that work site. A covered
entity may make inquiries into the ability of an
employee to perform job-related functions.
42 U.S.C. § 12112(d).

The ADA expressly allows examinations or inquiries as to whether an employee has a disability or as to the severity of a disability, if such examinations/inquiries are job-related and consistent with business necessity. 42 U.S.C. § 12112 (d)(4)(A). The Act also explicitly permits "inquiries" (but not examinations) as to an employee's ability to "perform job-related functions." 42 U.S.C. § 12112(d)(4)(B). However, the Act is unclear as to whether examinations (rather than inquiries) are permissible if intended to evaluate the employee's ability to perform job-related functions, even if such examinations are not intended to discover whether an employee is "disabled" within the meaning of the Act, as permitted in § 12112(d)(4)(A).

The EEOC regulations clarify the statute by explaining that "[a] covered entity may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity." 29 C.F.R. § 1630.14(c). An examination that is "job-related" and "consistent with business necessity" must be limited to an evaluation of the employee's condition only to the extent necessary under the circumstances to establish the employee's fitness for the work at issue. Cf. Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 811-12 (6th Cir. 1999) cert. denied, 530 U.S. 1262 (2000). According to the interpretation in Equal Employment Opportunity Commission regulations, any examination ordered by the employer must be restricted to discovering whether the employee can continue to fulfill the essential functions of the job. See 29 C.F.R. Part 1630, App. § 1630.14(c) (offering interpretive guidance to § 1630.14(c)). In Tice, the Third Circuit has deferred to the EEOC's interpretation of § 12112(d) to permit examinations and inquiries that, although perhaps not intended to discover whether an employee is "disabled" within the meaning of the ADA, are job-related and consistent with business necessity. Tice v. Ctr. Area Transp. Auth., 247 F.3d 506 (2001). In Sullivan River, the Sixth Circuit also accepted the EEOC regulations as "a body of experience and informed judgment to which courts and litigants may properly resort for guidance." 197 F.3d at 811-812. The Sixth Circuit qualified the interpretation, stating it “is not an excuse for every wide-ranging assessment of mental or physical debilitation that could conceivably affect the quality of an employee's job performance.” Id. However, an employer may not make a medical inquiry or require a plaintiff to submit to testing merely to confirm its suspicions about the nature of an employee's illness. 29 CFR § 1630.14 (App.) ("For example, if an employee suddenly starts to use sick leave or starts to appear sickly, an employer could not require that employee to be tested for AIDS, HIV infection, or cancer unless the employer can demonstrate that such testing is job-related or consistent with business necessity."). Doe v. Kohn, Nast & Graf, 866 F.Supp. 190 (E.D.Pa. 1994). An employer "must demonstrate some reasonable basis for concluding that the inquiry was necessary." Fountain v. New York State Dep't of Correctional Servs., 190 F. Supp. 2d 335, 339 (N.D.N.Y. 2002). The employer must have a genuine reason to doubt that an employee can perform job-related functions. Id. Johnson v. Eastchester Union Free Sch. Dist., 211 F. Supp. 2d 514 (S.D.N.Y. 2002). An employee's behavior cannot be merely annoying or inefficient to justify an examination; rather, there must be genuine reason to doubt whether that employee can perform jobrelated functions. Sullivan, 197 F.3d at 811.

Subsection (d)(4) applies to all "employees," not just “qualified individuals with disabilities.” Fredenburg v. Contra Costa County Dep't of Health Servs., 172 F.3d 1176, 1181-82 (9th Cir. 1999); Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1229 (10th Cir. 1997); Cossette v. Minnesota Power & Light, 188 F.3d 964, 969-70 (8th Cir. 1999); Griffin v. Steeltek, Inc., 160 F.3d 591, 594 (10th Cir. 1998); Karraker v. Rent-a Center, 239 F. Supp. 2d 828, 834-35 (C.D. Ill. 2003); Jackson v. Lake County, 2003 U.S. Dist. LEXIS 16244, 22-30 (D. Ill. 2003.

The ADA provision on prohibited inquiries, however, stands alone so that a prohibited inquiry in and of itself may be a violation. See 42 U.S.C. §12112(d)(4)(A); 42 U.S.C. § 12117(a) (making Title VII remedies available for violation of "any provision" of the ADA); 29 C.F.R. § 1630.13; 29 C.F.R. Pt. 1630, App. § 1630.13; Doe v. Kohn Nast & Graf, 866 F. Supp. 190, 197 (E.D. Pa. 1994). Consequently, a prohibited inquiry claim, unlike a general discrimination claim, does not necessarily implicate McDonnell- Douglas analysis. Gonzales v. Sandoval County, 2 F. Supp. 2d 1442, 1445 (D.N.M. 1998)

a. An “Objective” Standard Must Be Applied to “Individualized” Facts
The standard by which the Court must determine whether the employer has demonstrated that a medical exam is consistent with business necessity is an objective or reasonable person standard. Most courts have applied such a standard in cases involving employee medical examinations under the ADA. See, e.g., Tice, 247 F.3d at 518. ("The ADA's requirement that [a medical examination] be consistent with business necessity is an objective one."); Sullivan, 197 F.3d at 813 ("An employee's protection from harmful intent on an employer's part comes from the dual requirements that there be evidence sufficient for a reasonable person to doubt whether an employee is capable of performing the job, and that any examination be limited to determining an employee's ability to perform essential job functions."); Law v. Garden State Tanning,
159 F. Supp. 2d 787, 794 (E.D. Pa. 2001) ("There must be sufficient evidence for a reasonable person to doubt whether an employee is capable of performing the job, and the examination must be limited to determining an employee's ability to perform essential job functions."). Terry v. City of Greensboro, 2003 U.S. Dist. LEXIS 869, 2003 WL 151851 (M.D.N.C. Jan. 17, 2003) ("Mental and physical examinations have been upheld as preconditions to returning to work if the request is supported by a reasonable belief about the plaintiff's capabilities and the examination relates to essential functions of the job.").

While the standard to be applied is objective, it must be applied based upon an individualized inquiry, so that facts which justified examinations in other cases cannot be cobbled together to justify an examination in another case. Cf. Sutton v. United Air Lines, Inc., 119 S. Ct. 2139, 2147 (1999)(generally holding that liability under the ADA must be based upon an individualized assessment of the facts of a case). Acknowledging the limited usefulness of analogous and anecdotal precedent, Plaintiff observes that there are essentially three situations in which post-employment examinations have arisen in the reported cases: 1) The employee is seeking to return from leave with a continuing restriction; 2) The employee reports a restriction that raises issues about the employees ability to continue to perform the essential functions of his position;1 and 3) the employer believes for some other reason that the employee may be no longer able to perform the essential functions of his position. See e.g. Sullivan, supra. In cases where the issues are behavioral or psychological, the record has disclosed a long course of very specific, very serious behavior and attempts by the employer to remediate the conduct. In Sullivan the Court noted that the evidence indicated that Sullivan’s behavior “apparently changed for the stranger beginning in 1995.” 197 F.3d at 809-810. In each case, the Court found that the “strange” conduct was directly impacting upon the persons ability to perform his/her job. In Conrad, the Plaintiff admitted that her mental state was such that she could not perform her job. In Sullivan, the “strange behavior” was overtly violent and threatening. The case law yield some guiding principles, at least insofar as a request for an examination based upon mental health questions. From these cases, an employer may consider a fitness for duty examination where:
• An employee voices a concern that s/he is too upset to perform
This factor is almost obvious, but a statement that may raise concern should be limited to one which is more than merely an expression of frustration.
• Engages in specific, repeated disruptive actions after being counseled
The employer notes several instances of disruptive behavior and made attempts to address the issues in counseling and disciplinary conferences first. Only after the employee is unresponsive to the normal course of workplace behavior correction was an examination considered.
• Engages in unpredictable aggressive or unsafe behavior
Again, this is almost obvious. However, to give meaning the admonition from Sullivan that the behavior must be more than simply annoying, unpredictable actions that may justify an examination should be limited to those which pose an actual safety threat.
• Engages in clearly unprofessional conduct in the performance of his/her job duties
The focus here should be on actions taken in the actual course of work (behavior, attitude toward other workers, actions with and concerning others, etc.) Again, the conduct must be specific, and more than merely annoying or inefficient.
• Makes threats
• Engages in overtly threatening behavior
These are also obvious issues, which may warrant more severe action than merely requesting an examination. A distinction, however, must be made between direct and indirect threats. The former, threatening to harm someone or destroy property in the present tense, should likely be dealt with by segregating the employee (suspension or termination), perhaps involving the intervention of a law enforcement agency. The latter, making vaguely threatening remarks or gestures, again may warrant consideration of immediate disciplinary action by the employer, but may also justify a request that the employee undergo a fitness for duty examination. Again, the behavior must be more than merely annoying.

The behaviors that other Courts have found significant have obvious manifestations of a performance or disciplinary issue, not mere underachievement, listlessness or sloth. This list is not meant to be exhaustive, since the ADA requires an individualized inquiry, nor should any one factor necessarily be determinative or outweigh any other.

B. Selectively Tell
The actions of a supervisor with respect to a request for accommodation may subject the company to liability once the employer is on notice of a disability. Therefore, a request to the supervisor for accommodation (even if that magic word is not used) any denial by the Supervisor or other adverse action is a violation by the employer.

Huffsmith v. Yellow Transp., Inc., 2006 U.S. Dist. LEXIS 57455, 27-28 (M.D. Pa. Aug. 15, 2006). Furthermore, under the ADA, the employer does not have a defense that it acted because of a breakdown of internal communications. Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 187 (3rd Cir. 1999). It is therefore important for a Supervisor who is confronted with a request for some alteration of the terms and conditions of employment to communicate with his/her supervisors and Human Resources, and vice versa before any action is taken on the request.

You're Where?! – Managing Leave Requests
There are three general categories of medical leave requests under the FMLA:
• Requests for Leave (ie. time completely away from work)
• Requests for Intermittent Leave (ie. time away from work occasionally)
• Requests for Reduced Duty Leave

Each of these may also constitute requests for reasonable accommodation under the ADA. Bernhard v. Brown & Brown of Lehigh Valley, Inc., 720 F. Supp.2d 694 (E.D. Pa.2010); Dogmanits v. Capital Blue Cross, 413 F. Supp.2d 452 (E.D. Pa. 2005) (While leaves of absence for medical treatment can be considered as a reasonable accommodation for disability in some circumstances, leave time must enable employee to perform his or her essential job functions in the near future). However, a continued leave of absence for an unspecified length of time is not a reasonable accommodation. Reifer v. Colonial Intermediate Unit 20, 462 F. Supp.2d 621, 636 (M.D. Pa. 2006); see also Brannon v. Luco Mop Co., 521 F.3d 843 (8th Cir. 2008) (an employer is not required by the ADA to provide an unlimited absentee policy); Dansler- Hill v. Rochester Institute of Technology, 764 F. Supp.2d 577 (W.D. N.Y. 2011)(Although temporally-defined leave of absence may constitute a "reasonable accommodation" under the ADA, employer is not required to place an employee on indefinite leave, awaiting the day when the employee might recover sufficiently from his disability to return to work); Brown v. The Pension Boards, 488 F. Supp.2d 395 (S.D.N.Y.2007) (employee's request for open-ended, indefinite leave of absence, with no guarantee that it will actually enable employee to eventually return to work to perform his essential job functions, goes beyond ADA's accommodation requirements).

After the enactment of the ADA Amendments Act in 2009, the line between a “serious health condition” under the FMLA and a “serious medical condition” under the ADA has been considerably blurred. Under the FMLA, a "serious health condition” is an illness, injury, impairment, or physical or mental condition that involves:
• any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
• a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
• any period of incapacity due to pregnancy, or for prenatal care; or
• any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
• a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer's, stroke, terminal diseases, etc.); or,
• any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

Under the ADA, a serious medical condition is one which limits a major life activity. An FMLA "serious health condition" is therefore not necessarily an ADA "disability." Some FMLA "serious health conditions" may be ADA disabilities, for example, most cancers and serious strokes. Other "serious health conditions" may not be ADA disabilities, for example, pregnancy. This is because the condition is not an impairment (e.g., pregnancy).

However, other medical conditions, which once may not have been ADA disabilities before 2009 may now be considered as such. This is because the ADAAA counsels that the definition of disability “shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.” While Congress retained the terms “substantially limits” and "major life activities" from the original ADA definition of "disability," its makes clear the intent the terms impose less-demanding standards than those enunciated by the Supreme Court and also states that the EEOC's regulatory definition of "substantially limits" was overly strict. The takeaway is that most of the time, the primary consideration should not be on whether the employee has a disability, nor the extent of the limitation, but rather whether any limitations can be accommodated. For the purposes of leave as accommodation, the enquiry should be whether a period of leave will enable the employee to return to work able to perform the essential functions of the job with or without accommodation. The FMLA was also expanded under the 2008 amendments to add the possibility of reduced schedule leave. Prior to this, an employee who returned to work after an FMLA leave was often required to procure a release that s/he could work without restrictions. As this was often not the case, employees were denied return to work or denied his/her prior position with little recourse. The FMLA now allows for, essentially, accommodation of job modification whether or not the employee is entitled to a reasonable accommodation under the ADA.

It may a best practice, therefore, to treat all FMLA requests as requests for reasonable accommodation under the ADA, and initiate the interactive process. Similarly, an employee who requests an extension of the their FMLA leave beyond twelve weeks should be treated as making a request for reasonable accommodation under the ADA, and again, the interactive process initiated.

Who, Me? – Supervisory Liability and the "Cats Paw"
When Does the Supervisor Create Employer Liability?
In the analogous setting of a Title VII action, the Supreme Court has held that when the actor is "within that class of an employer organization's officials who may be treated as the organization's proxy," the employer may be liable. Faragher v. City of Boca Raton, 524 U.S. 775, 789 (1998). See Vendetta v. Bell Atl. Corp., 1998 U.S. Dist. LEXIS 14014, *29, n.6 (E.D.Pa. 1998)(holding that vicarious liability under ADA to be analyzed under Faragher). Similarly, in a Section 1983 action, the Supreme Court has held that “when a subordinate's decision is subject to review by the municipality's authorized policymakers . . . . and the authorized policymakers approve a subordinate's decision and the basis for it, their ratification [will] be chargeable to the municipality.” City of St. Louis v. Praprotnick, 485 U.S. 112 (1988). See Plunto v. Wallenstein, 1989 U.S.Dist. LEXIS 9579 (E.D.Pa. 1989).

Praprotnik recognized that final decision-making power may be delegated, and that a local governing body may be held liable based upon the exercise of this delegated power. See id. at 124.

Also, when there is a discriminatory employment action with tangible results, the employer will be liable once the discrimination is proven. Id. at 790. The rationale for the latter rule may be that the decision maker "merges" with the employer or becomes the proxy for the employer in making such a decision. Lidwell v. University Park Nursing Care Ctr., 116 F. Supp. 2d 571, 579 (M.D.Pa. 2000). Alternatively, the decision maker may be seen as acting within the scope of his or her authority in making the decision. Id. Finally, it may be said that the decision maker is aided by the agency relation in taking a discriminatory action. Faragher at 790-791. Thus, the identity of the decision maker and the nature of the delegated authority must be evaluated “in light of basic agency principles..." Faragher at 791.

Finally, an employer is not necessarily insulated from liability when the final decision-maker is not the supervisor who has a discriminatory motive. In Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011) the Supreme Court accepted the “cat’s paw” theory of liability as imposing liability upon the employer only if these steps play out in a sequence: (1) a supervisor of the worker takes a step (writing up a negative report, for example) that is done for a biased reason, (2) that supervisor intends to get the worker fired, demoted or otherwise penalized, and (3) the supervisor’s step is found to be the “proximate” cause of the ultimate decision — even if the executive or supervisor who actually carries out the firing or other penalty is someone else, and that person was not at all biased. The opinion pointed out in a footnote, however, that the Court was only dealing with a situation where the biased intent was harbored by a supervisor. “We express no view as to whether the employer would be liable if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision.”

When is the Supervisor Liable?
A. Federal Law
There is no provision for individual liability under the ADA. Specifically, Pennsylvania District Courts and the Third Circuit have determined there is no individual liability under the ADA. Koslow v. Cmwlth of Pa., 302 F.3d 161 177-178 (3d Cir. 2002) (potential individual liability for prospective relief only); Emerson v. Thiel College, 296 F.3d 184 (3d Cir. 2002); Saylor v. Ridge, 989 F.Supp. 680 (E.D.PA. 1998); Clarke v. Whitney, 907 F.Supp. 893 (E.D. PA. 1995).

Under the FMLA, "a person who has the authority to hire and fire,” who have "sufficient control of the terms and conditions of employment" may be considered an employer." Haybarger v. Lawrence County Adult Prob. & Parole, 667 F.3d 408 (3rd Cir. 2012); McKiernan v. Smith-Edwards-Dunlap Co., 1995 U.S. Dist. LEXIS 6822, 1995 WL 311393, at *3 (E.D. Pa. 1995); Hayduk v. City of Johnstown, 580 F. Supp. 2d 429, 476 (W.D. Pa. 2008).

B. State Law
1. Pennsylvania
Under the Pennsylvania Human Relations Act, a supervisor may be personally liable for conduct which aids and abets the discriminatory conduct of the employer. Wilson v. Children's Museum of Pittsburgh, 2006 U.S. Dist. LEXIS 28978 *7 (W.D. Pa. 2006). When a supervisory employee has knowledge of conduct which creates a hostile work environment, inaction by such an employee or failing to take prompt remedial action to prevent harassment rises to the level of individual aiding and abetting. Dici, 91 F.3d at 553. EEOC v. Donohue, 2010 U.S. Dist. LEXIS 92330 (W.D. Pa. July 20, 2010). Several courts have held that a supervisor, who fails to take action to prevent discrimination, even when it is his or her own conduct at issue, can be liable for aiding and abetting the employer under § 955. See Kohn v. Lemmon Company, 1998 U.S. Dist. LEXIS 1737, 1998 WL 67540 *8 (E.D.Pa. Feb. 19, 1998); Frye v. Robinson Alarm Co., 1998 U.S. Dist. LEXIS 1331, at *10, 1998 WL 57519 at *4 (E.D.Pa. Feb. 11, 1998) (citing Glickstein v. Neshaminy School Dist., 1997 U.S. Dist. LEXIS 16317, 1997 WL 660636 at *11-13 (E.D.Pa. Oct. 22, 1997)); Wien v. Sun Co., Inc., 1997 U.S. Dist. LEXIS 19220, 1997 WL 772810, at *7 (E.D.Pa. Nov. 21, 1997).

2. New Jersey
In Tarr v. Ciasulli, the New Jersey Supreme Court held that the standard for aiding and abetting liability under the NJLAD is based on the Restatement (Second) of Torts §876(b), which requires three elements: (1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal tortious activity at the time he provides the assistance; (3) the defendant must knowingly and substantially assist the principal violation. Id. See also Hurley v. Atlantic City Police Dep’t, 174 F. 3d 95, 127 (3rd Cir. 1998), Comment d. to this Restatement section sets forth five factors to determine if an individual has provided “substantial assistance” to the principal violator, namely: (1) the nature of the act encouraged; (2) the amount of assistance given by the supervisor; (3) whether the supervisor was present at the time of the asserted harassment; (4) the supervisor’s relations to the others; and (5) the state of mind of the supervisor. Tarr at 84.

Based on the decisions under the LAD, supervisors may avoid potential aiding and abetting liability if they do not demonstrate hostility toward complaints of sexual harassment and take some action to stop the harassment, even if the action is not effective or necessarily meaningful. See, e.g., J.A. v. Ridgewood, 2009 WL 1364626 (D.N.J.) (“meaningful action” is not required to avoid aiding and abetting liability under the NJLAD). A supervisor should be receptive to complaints of harassment and to take some action in response to knowledge of sexual harassment is consistent with a supervisor’s legal duty to prevent, avoid and rectify invidious harassment in the workplace. Herman v. Coastal Corporation, 348 N.J. Super. 1, 25 (App. Div. 2002) (citing Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 622-23 (1993); Hurley, supra. 174 F. 3d at 126.

A supervisor’s refusal to fulfill this duty is itself tortious, exposing both the supervisor and employer to liability. This is so because the effect of aiding and abetting discriminatory conduct in the workplace “is no less caustic than committing the actual discriminatory act itself.” Gardenhire v. New Jersey Manufacturers Ins. Co., 333 N.J. Super. 219, 229 (L. Div. 2000). see also, Restatement (Second) of Torts §876(b) comment c. (“it is essential that the conduct of the actor be in itself tortious”). See also Ivan v. County of Middlesex, 595 F. Supp. 425 (D.N.J. 2009).

Happy to See You – Return to Work
A Return to Work program is designed to return an injured, disabled, or temporarily impaired worker to the workplace as soon as medically feasible. The anticipated result of the program is the progressive return of the injured employee to full duty. A Return to Work program may include temporary or permanent accommodations such as modified schedule, modified job duties, modified method for completing job duties, or transitional work, or reassignment to an alternate position. As discussed above, an employee may be entitled to these under the ADA as a reasonable accommodation, or the FMLA as modified schedule or intermittent leave.

An effective Return to Work program helps injured or disabled employees maintain productivity while still recuperating, protecting their earning power and boosting an organization's output. And finally, an Return to Work program helps ensure compliance with disability-related legislation such as the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the Occupational Safety and Health Act (OSH Act), and workers’ compensation and other state laws.

As with workplace accommodation programs, a Return to Work program should have
• clearly written policies articulating the challenge that has been identified,
• how the policy addresses the challenge,
• the role and responsibilities of those involved in the policy implementation as well as timeframes for various actions, and
• how the program will be evaluated.

A practical resource is produced by Return-to-WorkMatters.com in a publication called the Injury and Case Management: A practical guide to dealing with return to work after work injury, which outlines specific actions to be taken in various time frames, and the challenges if these are not carried out (Return to Work matters.com, 2010). Although oriented toward workplace injuries, the process is generally applicable to returns from leave for non-work related injuries.

Just as in the case of the pre-leave interactive process, a Return to Work process operates best as a partnership between the employer and employee where both parties’ needs are met. This requires regular communication between the employer representative and the employee. Communication may be the difference between successful return to work or litigation. “In most claims that result in litigation, the initial conversation was the starting point for blame and resentment” (Return to Work matters.com, 2010).

Accurate job descriptions that include the physical demands of particular essential functions are also important. Accurate job descriptions help everyone in the process (e.g., doctors, rehabilitation staff, and accommodation specialists) understand the job requirements. A good understanding of the job demands and the employee's limitations and abilities is the starting point for determining if effective job accommodations will enable the employee to return to or stay at work while still recovering from injury. Effective job accommodations insure that the employee returns to work as soon as possible without risk to the employee or employer. The Job Accommodation Network (http://AskJAN.org/media/JobDescriptions.html) is a useful source for more information about this. JAN also provides a six step interactive process for engaging the injured employee and negotiating accommodation. This detailed process can be found at: http://AskJAN.org/topics/interactive.htm.

Return-to-Work and the Americans with Disabilities Act
An employee is entitled to reasonable accommodation after taking either FMLA leave or leave as an ADA accommodation. Policies requiring employees to be completely restriction-free may violate the ADA. Some courts have characterized "100% healed" policies as per se violations of the ADA, but most courts have held that such policies only violate the ADA when applied to an employee who meets the definition of disability. However, the continued validity of these cases is questionable given the expanded definition of “disability” under the ADA, and the availability of reduced schedule leave under the FMLA. In short, it is likely a best practice to treat most requests for job modification as a request for reasonable accommodation under the ADA, and move directly to the need for an accommodation, and parameters of that accommodation.

1 Where a plaintiff experienced pain in her wrists while performing computer work which was clearly a job-related activity and connected her pain to her job duties, defendant could lawfully ask her to undergo a medical examination to determine whether she was still able to perform the essential functions of her position, with or without reasonable accommodation. Johnson v. Goodwill Indus., 1998 U.S. Dist. LEXIS 21040 (E.D.N.C. 1998). In Dean v. Philip Morris USA Inc., 2003 U.S. Dist. LEXIS 13035 (M.D.N.C. 2003), the proposed examination was permissible where it was confined to an evaluation of the effect that knee problems would have on Plaintiff’s work, and the restrictions proposed by Plaintiff's own surgeon provided Defendant a reasonable basis to believe that Plaintiff's knee condition would have a direct effect on her ability to perform certain job functions. In Ketcher v. Wal-Mart Stores, Inc., 122 F. Supp. 2d 747, 754 (S.D.Tx. 2000), the examination to determine what activities Plaintiff could and could not perform was permitted because Plaintiff, an operator of heavy machinery, had advised Defendant that he was suffering from dizziness.


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