Anthony Morelli had permanent nerve damage that caused spasms. His doctor put him on some restrictions: no heavy lifting and every four to six months, he needs to spend two days in bed after receiving treatment.
The company he worked for, Prestige Care, Inc., Prestige Senior Living, LLC, refused to accommodate Morelli, requiring him to lift heavy things and to find his own replacements on the days he needed to take off.
Morelli was one of many in this lawsuit, that just settled with the EEOC for $2 million and a five-year consent decree.
This is an error that your business may make as well.
100 percent healed and 100 percent fit for duty is unlawful
Want to know how to violate the Americans With Disabilities Act 100 percent of the time? Simple! Have an inflexible leave policy that requires workers to be 100 percent healed and 100 percent fit for duty before they can return to work; as opposed to giving reasonable accommodations.
Sure, you want your employees to be healthy all the time, but the law doesn't require that. In fact, it often requires you to support an employee with a disability. If light duty is possible, or there is another remedy available, you need to go down that road.
Lots of people are familiar with the Family Medical Leave Act, which provides protection for employees who have at least one year of tenure with a company and meet the other criteria. But the Americans With Disabilities Act, or ADA, has no waiting period and requires that you have just 15 employees. (Some states have lower limits.)
Morelli brought up his health problems in the job interview, and the company said that was fine, but then they didn't accommodate him as needed. He wasn't required to bring up needed accommodations during the job interview--he could have waited until his first day of work. And you can't ask, other than "Can you perform all the core functions of this job, with or without reasonable accommodations?"
You can't skip the "interactive process"
The ADA doesn't require that you provide whatever accommodations an eligible employee asks for. It does require that you go through an interactive process--that means there's a back and forth between the employee and the company. It's possible that there will be no reasonable accommodation.
For instance, Morelli was a cook, and avoiding heavy lifting would probably be reasonable. He wasn't alone in the kitchen.
But if he'd been a furniture delivery person, there is no reasonable accommodation for being unable to lift 50 pounds regularly. A furniture delivery company could say, "Sorry, we can't accommodate you."
Morelli needed two days off every four to six months. While the courts have ruled that regular attendance can be considered a core function of a job, you'd be hard-pressed to find any court that would say four to six days off per year was unreasonable.
Because Prestige Care had its 100 percent fit/100 percent healthy policy, the company did not go through the interactive process and look for a solution that would work for everyone. You absolutely cannot skip this step in the process.
It's possible that you can go through the process and not find a solution that is reasonable--like the aforementioned theoretical delivery driver. A surgeon who goes blind can no longer operate, but a blind coder can use software to assist. Don't assume you know there is no solution. Go through the interactive process.
Or you can be like Prestige and ignore seeking out reasonable accommodations for your employees and get a $2 million hand slap and an invasive consent decree.