Employers are understandably reluctant to allow employees with medical restrictions to resume working. A concern that returning the employee to work risks worsening their condition causes some employers to require a “complete release” from the employee’s physician before greenlighting a return to work. A lawsuit filed by the Equal Employment Opportunity Commission against FedEx demonstrates the danger in following such an across-the-board practice.
Drivers with physical restrictions
As a ramp transport driver for FedEx, Wendy Gulley drove a tractor-trailer and operated mechanical equipment while unloading pallets and containers at a facility in Minneapolis, MN. As a result of injuries to her back, hip and Achilles’ tendon, Gulley had lifting restrictions.
According to the EEOC, FedEx routinely followed the following policy for ramp transport drivers with medical restrictions:
- If a driver had any medical restrictions, they were placed on 90 days of “temporary-light duty” assignment
- If at the end of the 90-day light duty assignment the driver still had medical restrictions, they were placed on unpaid medical leave
- If at the end of one year of unpaid medical leave the driver still had medical restrictions, they were terminated, unless they qualified for short-term or long-term disability
Significantly, the EEOC claimed that under this practice FedEx would not discuss with a driver the possibility of any arrangement or accommodation that could permit them to continue working while medical restrictions were in place.
The termination and lawsuit
On account of her medical restrictions, FedEx placed Gulley on temporary light duty and then unpaid medical leave before ultimately terminating her employment. The EEOC alleges that FedEx never discussed with Gulley or considered potential accommodations for her limitations.
After her firing, Gulley filed a charge of discrimination with the EEOC complaining that FedEx had violated the Americans with Disabilities Act. After an investigation, the EEOC found in favor of Gulley and against FedEx. When efforts with FedEx to resolve Gulley’s charge and its “100% healed” policy were unsuccessful, the EEOC filed a lawsuit in federal court against the employer.
In its lawsuit, the EEOC sued on behalf of not only Gulley, but also on behalf of two other named drivers, as well as “a class of other qualified Ramp Transport Drivers ….” The EEOC contends that FedEx’s application of its 100% healed policy without any consideration of possible accommodations for a driver’s medical restrictions or physical limitations violated the ADA’s requirement that employers engage in the interactive process with disabled employees.
The upshot
It remains to be seen whether the EEOC will succeed with its claims against FedEx. Nonetheless, the message to employers should be loud and clear.
First, “100% healed” or “no restrictions” return-to-work policies or practices will get the EEOC’s attention and are likely to be challenged.
Second, by definition, the ADA requires employers to take a case-by-case approach when deciding whether or when an employee with limitations can return to work. That means taking into account the job’s essential functions, the nature and extent of the individual employee’s limitations, and the availability of realistic and reasonable accommodations. Across-the-board or blanket return-to-work policies or practices are not wise.
Third, even if an employee’s limitations clearly cannot be accommodated, go through the process (in an interactive way) of identifying the specifics of their medical restrictions, discussing potential accommodations and explaining why an accommodation under the circumstances may not be possible.
- EEOC v. Federal Express Corp., CIV No. 24-cv-3559 (Minn D. Ct. 9/6/24)
