Before the Americans with Disabilities Act (and there was a time before the ADA), it was not uncommon to require employees to have a doctor’s note returning them to work “with no restrictions.” That won’t work in today’s ADA world, and the EEOC’s recent complaint against M&T Bank Corporation in New York provides a clear reminder.

The Details

The EEOC alleges that HCSB (a bank that M&T acquired in 2015) had a policy requiring employees “with potential disabilities to take leave until a physician provided a full release with no restrictions.” Upon requesting a reasonable accommodation or more than five days off in connection with a medical condition, an employee got a letter that said “You may only return to work if your doctor has provided a written notice of a full release with no restrictions.”

The complaint mentions four allegedly aggrieved employees:

• Carmen Gaillard (Achilles tendinitis and bone spurs) and the Staten Island Clerk (a broken foot) each claim they were denied the reasonable accommodation of being allowed to wear a “cam walker boot” to work.
• The Cherry Hill Teller who claimed she needed accommodations for complications related to her pregnancy.
• The Jersey City Clerk who had arthritis and claimed she needed a cane to walk following some surgery. She did not request the accommodation (using the cane) because she knew it would not be granted.

The complaint also alleges that HCSB required people to remain on leave (rather than provide a reasonable accommodation such as the cam walker boot), and then terminated them after they couldn’t return to work without restrictions after 26 weeks (and sometimes earlier).

What Can We Learn from This?

We do not know the actual facts—only what the EEOC alleges in the complaint. However, assuming the facts as alleged are true, I can think of a few takeaways:

1. Return-to-work policies: Be sure your policies and form letters don’t suggest that an employee can only return to work “without restrictions” or with a “full medical release.” Policies should talk about being able to perform the job “with or without a reasonable accommodation.” Your form letters should encourage employees to tell you what, if anything, you can do to help get them back to work. Remember that you have to engage in the interactive process, and you need a clear record of what the employee requested as an accommodation.
2. No bright lines: Having a bright line policy that employees who run out of leave will be terminated if they cannot immediately return to work is risky. The EEOC has made clear that it believes leave can be a reasonable accommodation.
3. Get the word out on your policies: Make sure no one in your organization thinks that employees are automatically terminated if they run out of leave. I listened with horror (yes, horror) to a former HR Manager explain that the company always terminated people who couldn’t return to work after they ran out of FMLA leave. I knew that was not the corporate policy but apparently my onsite HR Manager had either ignored or forgotten about that change.
4. Consider accommodation even if the disability is questionable: The EEOC defines disability as broadly as possible. At first glance, I might have said that the Staten Island Clerk’s broken foot was not a disability under the ADA because it was transitory and minor. However, if she needed 26 weeks of leave, it doesn’t look all that minor or transitory. It is probably best to look at the requested accommodation and not get hung up on whether it is a disability.