California Judge Rules ‘Return To Work’ Policy Violates ADA

A Federal District Judge in California has ruled that certain language in a return to work policy after a medical absence has been held to having violated the Americans with Disabilities Act (ADA). In EEOC v. Dillards, decided February 9, 2012, the Court held that requiring an employee to get a doctor’s note stating the “nature of the illness or medical condition” violates the ADA provision against asking about disabilities.

Although this is not an Appellate Court decision, and currently has no effect on Arizona employers (as it does in California), the court cites to some Ninth Circuit case law. The Ninth Circuit does cover Arizona. So being proactive (and reasonably conservative on employment issues), I recommend Arizona employers to use the language shown below, which has been blessed by the Court.

If you feel there is an FMLA issue or the employee comes to you with a request for reasonable accommodation, treat those issues the same as you always have. Again, let me emphasize that this is not “the law” in Arizona. But in order to prevent issues form arising, this is my recommendation.

Recommended language:
“Employees are required to submit a doctor’s note specifying the date the employee was seen, stating that the absence was medically necessary, and stating on which date the employee will be able to return to work.”

Thom K. Cope is a partner with Udall Law Firm and an employment lawyer, who is a Fellow of the College of Labor and Employment Lawyers. For over 39 years, his practice has focused mainly on employment and labor law issues, as well as general litigation. Mr. Cope has tried over 80 jury trials to verdict, which have included all areas of discrimination and Department of Labor Wage and Hour matters. He has tried cases before the National Labor Relations Board and represented management in union labor negotiations and union organizing campaigns.

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