The Problem with “No-Restrictions” Return to Work Policies

At Your Service
with Attorney Bob

Dear Attorney Bob,

Our business currently has a policy that requires employees to be fully healed, with no restrictions, before they can return to work after a medical leave. Is this okay?
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Sincerely,
Returning to Work in Reedsburg

Dear Returning to Work in Reedsburg,

Your concern is valid—and timely! A “no-restrictions” return to work policy (also referred to as a 100%-healed policy) can land your business in serious legal trouble under both the ADA and FMLA. These laws are designed to protect employees from discrimination based on their medical conditions and ensure they are given a fair chance to return to work, even if they are not fully healed.

Let’s break it down step-by-step.

Why a 100%-Healed Policy Violates the ADA

The Americans with Disabilities Act (ADA) prohibits employers from having blanket policies that require employees to be fully healed or restriction-free to return to work. Here’s why:

• Reasonable Accommodations: Under the ADA, if an employee with a disability can perform the essential functions of their job with or without reasonable accommodation, the employer must allow them to return to work. A 100%-healed policy effectively ignores the possibility of reasonable accommodation and forces employees to be “all or nothing” when it comes to returning to work. This is a huge problem because the ADA requires that you engage in an individualized interactive process with the employee to discuss accommodations, rather than denying them based on a blanket rule.

For example, let’s say you have an employee who recently suffered a rotator cuff injury, like in a recent EEOC lawsuit. Their doctor has cleared them to return to work with restrictions (perhaps they can’t use one arm fully). If that employee can perform the essential functions of their job using their other arm, then your policy would be violating the ADA by not allowing them to return unless they’re 100% healed.

What’s Required Instead?

You must engage in a good-faith conversation—also known as the interactive process—with the employee to determine what accommodations (if any) would enable them to perform their job. This might mean adjusting their duties temporarily, offering assistive technology, or allowing them to work remotely, for example. You only have the right to deny an accommodation if it would cause undue hardship to your business or if the employee poses a direct threat to themselves or others in the workplace. 

For more information on job accommodations, including examples that may accommodate specific disabilities, visit https://askjan.org (Job Accommodation Network - a free resource).

How It Could Also Violate the FMLA

The Family and Medical Leave Act (FMLA) provides eligible employees with up to 12 weeks of unpaid leave for serious health conditions, among other reasons. While employers can require a fitness-for-duty certification to ensure an employee is ready to return, this does not mean the employee must be completely restriction-free.

Under the FMLA, employees may return to work even if they still need accommodations to perform essential job functions. A 100%-healed policy could be seen as interfering with an employee's rights under the FMLA if it prevents them from returning with restrictions and accommodations in place.

Recent Legal Cases: An Example of Risk

The EEOC recently filed a lawsuit against a company that maintained a 100%-healed policy and applied it to an employee who had been cleared to return to work with restrictions following a severe injury. The employee could perform all essential functions of his job using only one arm, but the company refused to let him return unless he had no restrictions. Ultimately, they terminated his employment. The EEOC claimed this was a violation of the ADA because the company failed to engage in the interactive process to determine reasonable accommodations.

What Should You Do?

Here’s how you can protect your business from ADA and FMLA violations:

1. Eliminate the 100%-Healed Policy: A hard-and-fast rule requiring employees to be fully healed or restriction-free to return to work is risky. Instead, focus on engaging in the interactive process with employees returning from medical leave.
   
   
2. Engage in the Interactive Process: If an employee requests an accommodation to perform their job’s essential functions, have a conversation with them to explore what accommodations are available. Document this conversation and make reasonable efforts to accommodate their needs.
   
   
3. Tailor Your Fitness-for-Duty Certifications: While you can request a fitness-for-duty certification under FMLA, ensure it focuses on the employee’s ability to perform essential functions with or without accommodation, rather than requiring them to be completely healed.
   
   
4. Consult Legal Counsel: Whenever you’re unsure about how to handle a return-to-work situation, it’s a good idea to get legal advice. This can help you avoid costly lawsuits and ensure compliance with both the ADA and FMLA.

Final Thoughts

Returning to Work in Reedsburg, I recommend you take a close look at your current policies and ensure they align with ADA and FMLA requirements. Requiring employees to be 100% healed before returning to work puts your business at risk for discrimination claims. Instead, focus on good-faith, individualized communication and reasonable accommodations. This approach not only keeps you compliant but fosters a more supportive workplace for your team.

If you need help revising your policies or navigating a specific employee situation, feel free to reach out to me at NextGen Legal. We’re here to guide you through this and ensure your business remains legally compliant.

Warm regards,
Attorney Bob

​P.S. Have more questions about ADA, FMLA, or other employment law issues? Contact us at NextGen Legal for tailored guidance to keep your business on the right side of the law!

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About Attorney Bob

Bob Sanders is an Attorney and the founder of NextGen Legal. After spending over a decade in BigLaw, working with clients of all sizes across the US, he became acutely aware of the recurring barriers that deterred businesses from seeking proactive legal advice: shrinking legal budgets competing with escalating fees. This realization spurred Bob to create NextGen Legal, a firm designed to eliminate these barriers and provide clients with the high-quality legal advice they need, exactly when they need it.

​At NextGen Legal, we're transforming the traditional law firm model. Bob’s extensive experience in labor and employment law has been instrumental in shaping a service that offers both day-to-day legal counsel and rapid response for emergent issues. We strive to empower our clients with the knowledge and strategies necessary to navigate the legal landscape effectively and make confident employment decisions, without the fear of unexpected costs.
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Rated a Rising Star by SuperLawyers (an accolade reserved for only 2.5% of attorneys in Wisconsin), Bob provides strategic legal advice and counsel to companies of all sizes, helping business leaders make confident, informed decisions. His expertise spans employment law, regulatory compliance, litigation, safety, corporate strategy, and risk mitigation. Bob excels in transforming complex legal challenges into clear, actionable business solutions, offering strategic guidance to leadership teams.

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