ARTICLE

3 mistakes employers make in returning employees to work after an injury

Be aware, and be flexible

Employees occasionally suffer injury on the job and face lengthy recoveries. Many employers take steps to speed recovery and reduce claims costs.

However, employers often try to move too fast or, in many cases, cut their losses and get rid of such employees.

As a result, there are three costly mistakes employers can make in managing return-to-work issues.

1. Ignoring the American with Disabilities Act Amendments Act — This is merely the new and improved Americans with Disabilities Act, amended in 2008. The new Act expands the definition of disability and increases the number of employees entitled to an accommodation.

Given these new standards, employment lawyers now recommend employers minimize the time spent arguing whether the employee is actually disabled and instead direct their resources toward a process of determining whether an accommodation is needed and, if so, reasonable.

This is called the interactive process. The interactive process requires the employer to communicate regularly with the employee about possible accommodations and work together to find a reasonable accommodation.

Failing to do so can lead to expensive consequences. For example, in one high-profile case several years ago, Sears paid a $6.2 million settlement after it had automatically terminated employees whose leave expired under the company’s workers’ compensation absence policy.

In another case, the nationwide truckload carrier, Tacoma, Wash.-based Interstate Distributor Co., was ordered to pay $4.85 million to settle a disability discrimination lawsuit.

The Equal Employment Opportunity Commission found that the company’s 12-week leave maximum, consistent with the Family Medical Leave Act (FMLA) and its “no restrictions” policy that requiring employees to be 100 percent healed and able to perform all of their job duties before returning to work, violated the ADAAA.

Finally, in a Chicago case, a federal court found that a supervisor’s failure to ask follow-up questions to determine whether an employee needed an accommodation was unlawful and violated the duty to engage in the interactive process. The court’s decision underscored the importance of training all supervisors on the interactive process basics.

2. Insisting employees be released to full duty before returning to work — Again, having inflexible, one-size-fits-all return-to-work polices will lead to litigation.

In 2011, SuperValu Inc., American Drug Stores and Jewel Food Stores Inc. were found to have violated the ADAAA and paid employees $3.2 million. The companies had inflexible leave policies that prohibited employees on one-year, paid disability leave from returning to work, unless they could return without any accommodation to full service without physical or mental restrictions.

If a worker still has medical restrictions at the point of maximum medical improvement, the employer needs to compare that worker’s abilities with the essential functions of the job as described in the job description, not with some arbitrary standard of 100 percent fitness for work.

3. Failing to understand the overlap and conflict among laws — As the above examples highlight, an employer faced with a return-to-work issue has to deal with the ADAAA, ERISA the FMLA, workers’ compensation law and perhaps a collective bargaining agreement. It is an administrative nightmare.

There are differences in eligibility, leave lengths, job reinstatement requirements and bumping rights, among issues. Employment lawyers and human resources professionals have said that having a “silo” departmental structure in which separate areas manage each leave can be inefficient, duplicitous and result in bad outcomes for both employees and employers.

Make sure the right hand knows what the left hand is doing. Employers should have a go to a person — inside or outside counsel — to ensure your company is in compliance with the ADAAA, FMLA, ERISA and workers’ compensation laws.

The lesson learned on all this? The EEOC will continue to target maximum leave policies that do not take into account additional leave as a form of reasonable accommodation. So be more flexible.

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