Motor Carrier’s “100% Healed” Policy Does Not Give Rise to Per Se Disability Discrimination Under Prior Regulatory Scheme
Recently, the federal U.S. Court of Appeals for the Seventh Circuit (which has jurisdiction over Wisconsin, Illinois and Indiana) opined that a motor carrier’s “100% healed” policy—through which the carrier insisted that its employees be “100% healed” following medical leaves of absence, does not necessarily support employee claims under the federal Americans with Disabilities Act (“ADA”). The case is Powers v. USF Holland, Inc., Case No. 10-2363 (7th Cir. 2011).
In USF Holland, Inc., Powers, a long-haul truck driver, injured his back in a work-related accident. Following his five-month worker’s compensation leave of absence, Powers successfully returned to work as a long-haul truck driver—a position he occupied for two years without incident. About two years later, Powers requested a transfer to the “city driver route” as the birth of his child neared—presumably to be closer to home (city drivers remain within a one-hundred mile radius of the terminal). After transferring into the “city driver” position, Powers began experiencing problems with his back (due to substantial dock work), which precipitated his request to transfer back to his long-haul driver position. The collective bargaining agreement did not allow Powers to transfer into another position at the time of his request (it allowed only one transfer within a twelve-month period), so USF Holland, Inc. (“Holland”) denied his request.
After Holland denied his request to transfer back to his long-haul driver position, Powers took a medical leave of absence, but later sought to return to work as a long-haul driver, presenting Holland with a medical release that limited him to “road driver work” and “limited dock work.” Holland would not permit Powers to return to work without first clarifying his restrictions and unless he received a medical release without restrictions—the so-called “100% healed” policy. Powers sued Holland, claiming it violated the ADA by, among other things, enforcing the 100% healed policy.
The Court determined that the “100% healed” policy did not support a per se “regarded as” discrimination claim under the ADA because such a policy does not necessarily implicate substantially limiting impairments. However, the Court also cautioned that the USF Holland, Inc. case was analyzed under the prior regulatory rubric, and that under the current ADAAA, which took effect on January 1, 2009, “[t]he risk of [a 100% healed] policy is even greater—if not absolute—now that the ADAAA has changed the definition of regarded as disabled,” and “under the ADAAA…it would be risky for Holland to apply such a policy.”
Also, although not separately analyzed by the Court in USF Holland, Inc., there may be circumstances under which collective bargaining agreement provisions make reasonable accommodation under the ADA impermissible under the terms of the labor agreements (e.g., reassignment to a vacant position in a manner inconsistent with the terms of a collective bargaining agreement—without separately negotiating the reassignment with the union—may amount to so-called “direct dealing” with the bargaining unit member in violation of the National Labor Relations Act). Thus, motor carriers are encouraged to work with labor-relations counsel to best understand how collective bargaining agreements and the ADA interact.
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