EEOC: Union Pacific ignored doctor's opinion of worker recovered from tumor

Dive Brief:

Alleging that it violated the Americans with Disabilities Act (ADA) by refusing to allow a custodian who had a brain tumor removed to return to work, the U.S. Equal Employment Opportunity Commission (EEOC) has taken Union Pacific Railroad Company to court.
The Nebraska-based company declared the position to be "safety critical," the EEOC said. The freight hauler also failed to assess the worker individually, the agency said. It ignored the opinion of the employee's doctor — that the employee was not at risk for sudden incapacitation — and disregarded evidence indicating that the worker had fully recovered and had never had a seizure post-hospitalization, the EEOC said.
In the statement announcing the lawsuit, a commission attorney noted that employers cannot place restrictions on workers based on "unreasonable fears" and "must rely on an individualized assessment, based on reasonable medical evidence of an employee's ability to perform the essential functions of the job safely."

Dive Insight:

Employers violate the ADA if they claim that an employee with medical restrictions poses a safety risk but cannot show that the individual poses a "direct threat" — which means that the employee's disability poses a "significant risk of substantial harm" to self or others, the commission has noted in a 2016 guidance. If an employee's disability poses a direct threat, an employer must consider whether reasonable accommodation will eliminate or diminish the direct threat, the EEOC said. Employers are obliged to provide a reasonable accommodation unless the employer can show that the needed accommodation would cause an undue hardship.

The commission has noted that if an employee returns from a leave of absence with medical restrictions, the employer is allowed to ask why the restrictions are needed and how long they may be needed. The employer can discuss accommodations with the employee and the employee's medical professional that will enable the employee to perform the essential functions of the job consistent with the doctor's recommended limitations.

Employers violate the ADA if they require employees to be 100% healed or able to work, unless the employer can show the necessary accommodations would cause an undue hardship, the EEOC said. In 2018, a Nevada gaming company paid out $3.5 million to settle a lawsuit challenging its "100%-healed" policy. The EEOC said the policy didn't account for the ADA's interactive process or its reasonable accommodation requirement. Coca-Cola agreed to pay $2.25 million last year to settle claims brought by nine employees who say that the beverage giant failed to properly accommodate them when returning to work from disability-related absences.

Experts have recommended that employers check their policies and review such situations on a case-by-case basis to keep from running afoul of the EEOC's stance on 100%-healed policies.