Dive Brief:

• Employees have alleged in a lawsuit that United Airlines Inc. maintained a 100%-healed return-to-work policy that required employees to return to work without any medical restrictions (Calhoun, et al. v. United Airlines Inc., No. 1:19-cv-03397 (D. Ill. May 20, 2019)).
• The plaintiffs claimed in the proposed class action complaint that the company violated the Americans with Disabilities Act (ADA) by refusing to accommodate employees with disabilities, terminating employees with disabilities and failing to rehire employees — actions that stem from the 100%-healed policy. United Airlines, the plaintiffs say, also "failed and refused to engage in good faith discussions" with the plaintiffs to determine appropriate accommodation. The action was filed in federal court in Illinois.
• The plaintiffs have asked for back pay, benefits, compensatory and punitive damages for the class; injunctive relief to prevent future discrimination; and that United Airlines be ordered to put into place policies that provide equal employment opportunities for qualified individuals with disabilities. 

Dive Insight:

Unless an employer can show that needed accommodations would cause undue hardship, employers may violate the ADA if they require employees to be "100%-healed" or recovered before returning to work, the U.S. Equal Employment Opportunity Commission (EEOC) says.

EEOC notes 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.

In this instance, the employees alleged that United Airlines failed to engage in good faith discussions with the employees to determine reasonable accommodations. While not an affirmative mandate, employers are expected to engage in an interactive, good-faith process to determine worker accommodations. The 3rd U.S. Circuit Court of Appeals explained that an employer can show good faith in several ways, such as meeting with the employee; requesting information about the employee's conditions and limitations; asking the employee about preferred accommodations; showing signs that it has considered the request; and, if the request seems to be onerous, by offering and discussing available alternatives.

Failure to engage in the interactive process isn't a stand-alone violation under federal law, though it is unlawful in Caifornia. However, it can be used as evidence of discrimination, while good faith engagement in the interactive process can serve as a defense to a discrimination claim.