Labor and employment attorney John Alan Doran, who has more than 35 years of experience counseling and representing employers, was featured in a Law360 article on recently filed lawsuits from the U.S. Equal Employment Opportunity Commission (EEOC). These lawsuits are aimed at employers’ zero-tolerance medical restriction policies. Doran discusses the EEOC’s disdain for zero-tolerance policies, the importance of the interactive process under the Americans with Disabilities Act (ADA), and takeaways for employers.

Below are excerpts from the article.

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For employers, these recent lawsuits signal that the EEOC remains attuned to policing what it sees as overly rigid medical restriction policies, according to John Alan Doran, a member at Sherman & Howard LLC who represents employers. He added that across-the-board requirements for workers to be fully healed from medical issues are a surefire way for employers to draw the agency’s ire, particularly if they overlook the so-called interactive process in which companies and workers discuss potential accommodations.

“I think the EEOC perceives zero tolerance policies as low-hanging fruit, and because of that they’re even more emboldened to litigate them,” Doran said. “So I don’t think this is going to decrease, and I don’t think it’s going to flatline either. It’s going to continue [to] increase as long as employers use these zero tolerance policies without any recognition of the supposed duty to engage in the interactive process.”

“They [have a] laser-like focus on the court-made duty to engage in the interactive process that becomes a means to an end, no matter how futile the interactive process might be,” Doran said.

“The EEOC interprets zero tolerance to mean there will be no interactive process, and if there’s no interactive process, they’re going to litigate,” he added.

The easiest path for employers to remain out of the EEOC’s sights, he said, is to have a policy for workers with medical restrictions that doesn’t eliminate the interactive process.

In practice, that may mean employers removing the phrase “zero tolerance” or similar wording, and “bak[ing] into the policy a recognition that you will discuss potential accommodations with anybody” who applies to return to work, according to Doran.

“The key response in all of this is to talk it out,” Doran said. “You have to engage in the interactive process, even though it says that nowhere in the ADA itself, or you’ll find the EEOC gets very interested in your policies.”

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