Best Ohio Disability Discrimination Employment Attorney Answer: Can my boss suspend me until I get a medical release to work without any restrictions? Can I sue for wrongful termination if I was fired today because of my disability? Can my boss force me to talk to a psychiatrist?
Sadly, our disability discrimination lawyers still frequently encounter the following scenario: an employee is injured, either at work or during their personal time. The boss, manager, or supervisor then tells that employee that they are being suspended from work until they get a medical examination and are cleared to return to work. Some employers even tell their employees that they will not be permitted to return unless their doctor clears them to return to work with “no limitations” or “no restrictions.” With limited exceptions, this is not legal. (See Can My Boss Force Me To Stay On FMLA Leave? Top Lawyer Reply!; Is A Transfer A Reasonable Disability Accommodation?; Disability Accommodation: Do I Need To See My Job’s Doctor? Best Lawyer Reply!; Can My Boss Require A Medical Note For Me To Get My Sick Leave?; and Disability Discrimination: Can I Get A Work Accommodation?)
The Americans with Disabilities Act (“ADA“) prohibits employers from “requir[ing] a medical examination” or “mak[ing] inquiries of an employee as to whether such employee is an individual with a disability … unless such examination or inquiry is shown to be job-related and consistent with business necessity.” An examination is only considered job-related and consistent with business necessity if an employer has a reasonable belief that (1) an employee’s ability to perform essential job functions is impaired by a medical condition; or (2) an employee poses a direct threat to others due to a medical condition. The employer’s belief must be based upon reasonable medical judgment using current medical knowledge and/or the best available objective evidence, not on general assumptions about a disability. That is, stereotypes and generalized fears about the risk of a particular disability are not sufficient – the decision must be based on objective and current medical knowledge about the employee’s current ability to perform the job. So, if an employee has been performing their job without a problem for some time despite their disability, it is less likely the employer will be able to show that the employee’s ability to perform the job is impaired, or that the employee poses a risk to others.
Employers who tack-on the requirement that an employee return to work with “no restrictions” are even worse, as such a requirement expressly rejects any effort to provide reasonable accommodations for disabled employees. Indeed, courts have universally found that “no restrictions” policies are per se discriminatory. For example, in Hutchinson v. United Parcel Service, Inc., the Northern District Court of Iowa found that UPS’s policy that an injured worker could not return to work until they were 100 percent healed and without restriction to be unlawful on its face:
The “100% healed” policy of UPS, as represented by the record here, does not make an individual assessment of an individual’s ability to perform the essential functions of the person’s job with or without accommodation following injury and resulting permanent disability, but substitutes for this inquiry simply a determination of whether the person is “100% healed” from the injury. Such a policy is a far cry from the requirements of the ADA. Not only does the court believe that the “100% healed” policy of UPS would be a per se violation of the ADA, the court finds that there is a genuine issue of material fact as to whether such a policy still exists at UPS, even after UPS has been advised by counsel that such a policy runs afoul of the ADA.
Despite this finding, Hutchinson ultimately lost because she could not demonstrate that she was disabled within the meaning of the ADA. However, several courts have found that such a rule will allow an employee to bring a “regarded as disabled” claim when the rule precludes them from working for the employer in any capacity at all. For example, in Henderson v. Ardco, the United States Sixth Circuit Court of Appeals explained:
All courts that have examined the question, including the one in Hutchinson and the district court here, agree that a 100% rule is impermissible as to a disabled person — but one must first be disabled. On summary judgment, though, the importance of the 100% rule is its role in determining the threshold issue of perceived disability. See Burns, 222 F.3d at 253 (stating that a plaintiff’s “ability to show that he is `disabled’ within the meaning of the statute is a `threshold requirement’ for recovery under the Act”). Where the 100% rule is applied to mildly impaired persons to exclude them from a broad class of jobs, it may be treating them as disabled even if they are not, thereby qualifying them for protection under the ADA and parallel statutes, and activating the individual assessment rule. The variability of the impairment-relevant job requirements within the business applying the 100% rule is thus important, because it indicates the breadth of the class the employer perceives when the employer applies the rule.
The Henderson Court’s ruling – which predated the Americans with Disabilities Act Amendment Act (“ADAAA“) is significant, because under the broadened definition of “regarded as,” nearly any employee who has a physical impairment that is not minor or short term (lasting six months or less) will be able to show that an employer who suspended them or terminated them under a 100 percent healed, now limitation, and/or without restrictionpolicy discriminated against them on the basis of a perceived disability.
Having to live with a disability is difficult enough without worrying about the effect it may have on your job. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. Call our Ohio employment law attorneys at 866-797-6040. The best option is not to wait. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.
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