After recuperating from a back injury, Dana Henderson received clearance from her doctor to return to work at Ardco, with limitations. She wasn't allowed to stoop or bend, and she could not lift more than 25 pounds. But the plant manager told her that company policy said she could not return to work until she was "100 percent healed."
Six months later she again asked for lighter-duty work, but the company, which manufactures refrigerator doors, said no light-duty positions existed. It was three years before Ardco finally rehired her, and then not in her former position as a welder.
Henderson sued, saying the company discriminated against her because it perceived her to be disabled. Although Henderson filed suit under a Kentucky law, a federal appeals court looked to the Americans with Disabilities Act (ADA) for guidance and let her case go forward. The company may have regarded her as disabled, the court said. (Henderson v. Ardco Inc., No. 99-6407, 6th Cir., 2001)
Advice: Don't try to hide behind your company's "100 percent healed" rule, it won't help you escape the long arm of the ADA.
Every court that has considered a 100 percent rule has found it illegal when applied to a disabled person. When such a rule is applied to workers with even mild impairments, it may be treating them as disabled even if they're not, which would qualify them for protection under the ADA and parallel state statutes.
Instead, you need to assess employees' ability to work individually, without relying on generalizations from the name of their condition or the fact that they are not 100 percent recovered.
- Document why you fired worker, even in cases where rationale seems crystal clear
- Feel free to change schedules if it will save money or improve operations
- Check post-Layoff rehire policies for disparate-Age impact
- Employers: 'Keep Out!' Beware overreacting to employees' Facebook, blog postings
- Don't rely on 'equal-opportunity jerk' defense