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100%-healed policy may be automatic ADA violation

When employees return to work after an illness or injury, it’s natural to wonder if they’re really ready to resume their duties. Think twice before requiring them to prove they are fully healed before you allow them to come back. That could constitute an automatic violation of the ADA.

Document ADA requests to prove good faith

The ADA requires a disabled employee and her employer to have an interactive conversation to determine whether it’s possible to accommodate the disability and, if so, how. If the employee doesn’t participate in the interactive process, she won’t be able to sue successfully over a denied accommodation. That’s why it’s essential to document every interaction once you suspect an employee might be disabled.

Review points-based attendance system now

Some employers use a points-based system to punish employees whose unplanned absences wreak havoc on operations. It can be effective. However, a system that’s too draconian or doesn’t allow for reasonable exceptions may invite litigation, especially from employees who claim they have an ADA-covered disability.

Steer clear of questions about past drug use

Warn supervisors not to pry into employees’ medical histories, including past abuse of drugs or alcohol. Simply asking workers about a perceived previous drug problem could trigger a lawsuit.

Long covid could trigger FMLA, ADA liability

Employers need to be ready to respond to more requests for both FMLA intermittent leave and ADA accommodations.

EEOC test case argues for even more telework

Last year, the EEOC endorsed remote work as an effective accommodation for disabled employees with pre-existing health conditions that made them more susceptible to infection. Now the EEOC has launched a lawsuit testing the argument that telework should be an accommodation even for workers who aren’t technically disabled but are at higher risk of covid-related complications.

Beware associational bias arising from covid

Associational discrimination is discrimination against an employee or applicant because of their association with a member of a protected class to which the employee does not belong. The consequences of covid-19 infections raise the possibility of new forms of associational discrimination and retaliation.

Spot difference between disabled and difficult

Some employees are harder to manage than others. They fail to follow directions, complain about assigned tasks and gripe about general working conditions. But sometimes disabled employees do all those things, too. Make sure you know the difference.

Warn bosses about bias against addiction disability

Refusing to hire someone because of the nature of their disability violates the ADA. That includes making harsh judgments about applicants who may have a disability related to addiction. It doesn’t matter whether the disability was triggered by the individual’s arguably poor choices.

Long covid may be an ADA-covered disability

Some people suffer for months with brain fog, joint and muscle pain, difficulty breathing, being unable to smell or taste and any number of other conditions.