Issue: Employees who return from injury leave may or may not be covered under the ADA.
Risk: By treating employees as if they're "disabled" (even if they're not), supervisors create costly ADA liabilities.
Action: Don't treat returning employees with "kid gloves" or suggest accommodations that aren't requested.
Don't create a problem where none exists. Train supervisors to treat employees returning from injury or illness leave the same as they would any other employee. Don't make assumptions about their condition or give unsolicited advice.
Why? The ADA entitles you to offer reasonable accommodations to qualified disabled employees. But, in some cases, if your supervisors treat a person's condition as if it were disabling, you must accommodate that condition, whether it's truly a "disability" or not. (This is called the ADA's "regarded as" clause.)
That's why it's best to play it straight with employees returning from injury leave. Assume that they can do the job. Don't treat them with kid gloves or offer unsolicited advice. And don't change job duties based on your assumptions about a person's ability to do the job.
Case in point: A customer service supervisor took leave after a pulmonary embolism. She recovered and wanted to return to work but needed to bring along a small oxygen tank.
The employer refused to let her bring the tank, and her supervisor suggested that she apply for disability payments, saying he didn't want to be responsible if she "fell over dead" at work.
She filed an ADA lawsuit. The court ruled that the woman wasn't disabled because she could do everything with the oxygen tank that she could do before. But because the employer treated her as being disabled, she was protected under the ADA, and the employer violated the law by firing her based on its (mistaken) belief that she was disabled. (Kelly v. Metallics West, No. 04-1051, 10th Cir., 2005)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Cast your vote in the Final Four of HR Headaches!
- How to Respond to an EEOC Complaint: 10 Steps to Success
- Don't nickel and dime ADA accommodations: Everything can't be essential to the job
- Violence and Weapons: How to Develop Policies and Procedures