Trucking company's '100 percent healed' policy causes controversy

Employers that implement 100 percent healed policies precluding any individuals with injuries or illness from working may be committing a per se violation of the ADA.

Case name: Powers v. USF Holland, Inc., No. 3:07-CV-246 JVB (N.D. Ind. 02/09/10).

Ruling: The U.S. District Court, Northern District of Indiana denied summary judgment to a freight transportation company in an employee's Americans with Disabilities Act suit regarding a companywide "100 percent healed" policy. The District Court granted summary judgment to the company in the employee's individual disability discrimination and failure to accommodate claims.

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What it means: Employers that implement 100 percent healed policies precluding any individuals with injuries or illness from working may be committing a per se violation of the ADA. Employers should instead conduct an individualized assessment of the individual's ability to perform the essential functions of his job with reasonable accommodations.

Summary: A truck driver injured his back while working. He took five months workers' compensation leave before an independent medical evaluator determined he was ready to return to work. The more demanding work hurt his back, and his supervisor counseled him about working too slowly. The driver took leave a second time. His doctor cleared him to return to work with medical restrictions. However, the company's policy would not allow him to return unless he was cleared without restrictions. The driver sued under the ADA for per se discrimination based on the 100 percent healed policy, for failure to accommodate his disability, and for disability discrimination. The District Court denied summary judgment on the per se discrimination claim. The court held that a genuine factual issue existed about whether the company enforced such a policy.

The driver produced a memo from his supervisor stating that he could not return unless he was completely healed. The company's representatives also acknowledged that its policies prevented injured workers from returning unless they had no restrictions. However, across-the-board policies that prevent injured workers from returning without conducting an individualized assessment of whether they are qualified for their jobs violate the ADA, the court stated.

The court granted summary judgment on the driver's discrimination and failure to accommodate claims. The court ruled that the driver was not a qualified individual with a disability under the statute. Although the driver claimed to be substantially limited in the major life activity of working, the court pointed out that he took a more physically demanding job after he was removed from work. The driver was able to perform other activities, such as sitting for two hours, bathing, household chores, and dressing himself, the court said. Additionally, the driver did not present any evidence showing how he was unable to work a range of jobs. Because he was not disabled, the company was not obligated to accommodate him, the court added.

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May 6, 2010

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