Company's 100 percent healed policy passes muster under old ADA

Under the ADA of 1990, a 100 percent healed policy is per se discrimination only where the employee has an ADA-defined disability. The ADA of 1990 applies to disability discrimination cases arising before Jan. 1, 2009.

Case name: Powers v. USF Holland, Inc., No. 10-2363 (7th Cir. 12/15/11).

Ruling: The 7th U.S. Circuit Court of Appeals affirmed a decision granting summary judgment to a trucking company on a driver's claims under the Americans with Disabilities Act of 1990.

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What it means: Under the ADA of 1990, a 100 percent healed policy is per se discrimination only where the employee has an ADA-defined disability. The ADA of 1990 applies to disability discrimination cases arising before Jan. 1, 2009.

Summary: A driver for a trucking company injured his back after driving over a rough patch of road. Following workers' compensation leave, he returned to work. Two years later, he began having problems with his back when he was switched from a long-haul assignment to a city route. He asked to switch back but was unable to do so within a year under the collective bargaining agreement. He took medical leave. When he sought to return, he presented a medical release with restrictions. Due to its 100 percent healed policy, the company did not allow him to return to work without a restriction-free release. He sued under the ADA of 1990. The 7th U.S. Circuit Court of Appeals affirmed a grant of summary judgment to the company, finding that the 100 percent healed policy was permissible because the driver did not have an ADA disability.

Under the ADA, a 100 percent healed policy is per se discrimination where an employee has an ADA disability. The driver could not establish that he was substantially limited in the major life activity of working. When he was not able to return to work with the company, he began working as a warehouse foreman for his father's agricultural company. Allegedly, the work was more physically demanding. His restrictions related to dock work and forklift operation, not truck driving. Also, the driver said he was physically able to perform jobs that did not involve dock work. This showed that nothing prevented him from working in a broad range of jobs.

The driver's "regarded as" claim also failed. Evidence established that the company "merely ... would not allow" the driver to return to work as a city driver, not that it considered him unable to perform a class of jobs. Although the driver argued the 100 percent healed policy established "regarded as" evidence, the 7th Circuit explained that where an employee does not have an ADA disability, "there is nothing illegal about being more risk-averse than others in the industry."

Read more at the WorkersComp Forum homepage.

February 13, 2012

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