Return to Work “Without Restrictions”

January 21, 2011

Many employers have policies that state that employees who wish to return to work following an illness or injury must be able to do so “without restriction” or for “full duty.” It now appears that those types of policies are seen as red flags by the Equal Employment Opportunity Commission (EEOC) when employees are terminated for not being able to meet these requirements. Earlier this month the EEOC announced a $3.2 million settlement in a lawsuit against Jewel-Osco, alleging that the grocery chain fired disabled employees who could not return to work without restriction rather than seeking to find them reasonable accommodations.

While the company has denied any wrongdoing and has indicated that it chose to settle the case to avoid litigation costs and put the matter behind them to focus on current business initiatives, it is clear that the EEOC’s suit had some merit. Part of the consent decree governing the settlement requires Jewel-Osco to engage a consultant to review and recommend changes to its current job descriptions to make sure that they accurately describe physical requirements for the job. It also requires the company to obtain recommendations from the consultant regarding possible accommodations to common work restrictions in various positions within the store.

What should you do?

For most companies, best practices include having up-to-date job descriptions in order to make decisions about accommodating an employee’s medical restrictions. Accurate job descriptions can be the lynch pin to defending a disability claim as the employer is given a great deal of deference in deciding what the essential functions of a particular job are. In addition, when an employee is unable to return to full duty, it is the employer’s obligation to engage in the interactive process to determine if a reasonable accommodation can be found. While employees are never required to create a job for an employee, it should be determined if the employee’s condition truly limits him/her from the essential functions of the job, or just peripheral job tasks that can be easily delegated to others without any undue hardship. Finally, it is strongly recommended that employers review their return to work policies to make sure they include a disclaimer that the provisions of the Americans with Disabilities Act (ADA) will be complied with in making the determination of returning the employee to work.