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Doc clears return to work? Disability unlikely

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in Employment Law,Human Resources

When an employee has a life-threatening and acute illness, he may need time off to recover. That’s a legitimate use of FMLA leave.

But what if the employee fully recovers and comes back to work with a clean bill of health from his doctors, yet still feels weaker, more fatigued and not quite back to full health? He’s not entitled to ADA reasonable accommodations.

Recovering completely doesn’t necessarily mean the employee will be in the exact same condition he was before he got sick, but neither does his “new normal” necessarily mean he’s disabled under the ADA.

To prove disability, he’ll have to show that a major life activity is impaired. That’s nearly impossible following a medical clearance to return to work.

Recent case: John worked for the Philadelphia Police Department as a homicide investigator for nearly 30 years. He came down with a bad case of spinal meningitis, an acute illness that left him unable to work for almost four months. But when he did come back, his doctors certified that he was cleared for full duty.

John saw it differently and requested a transfer to a less hectic division. He claimed he was still affected by meningitis and could no longer do the sort of things he did before illness struck, like staying awake for 24 hours or more.

The department refused and John sued, alleging failure to accommodate.

His case was quickly dismissed when the court concluded he wasn’t disabled. He could perform his job (which had never required him to work more than 10 hours per shift) and his doctors said he was well enough to do the job with no limitations. (Rossiter v. Costello, et al., No. 11-1183, ED PA, 2012)

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