by Mark S. Mathison, Esq., Gray Plant Mooty, Minneapolis
Now is the time to review your return-to-work policies and practices for employees on leave. They need to be integrated without regard to the reason that prompted leave. Otherwise, you may find yourself focusing too narrowly on the FMLA, workers’ compensation statutes or disability discrimination laws without considering the interplay between all of them.
Treating workers differently depending on the reason for their absence opens the possibility of a disability discrimination claim. It’s sure to attract the attention of the EEOC, which has been aggressively pursuing such cases.
Consider an employer that allows job-injured workers to return to light-duty positions but doesn’t offer that option to disabled workers or those injured off the job. To successfully defend such a policy in a dispute, the employer would have to establish a legitimate business reason for it. For example, it might be able to show that high workers’ comp costs justified light-duty work for those injured on the job, but not for others.
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Light duty vs. reasonable accommodations
Don’t confuse light duty with reasonable accommodations.
Often, “light duty” simply means a less physically demanding job than the one an employee held before a leave began. Light duty might be one reasonable accommodation for a disabled worker.
But reasonable accommodations can take many forms, including returning an employee to her original job with assistance from a co-worker or adaptive technology that helps the employee perform essential job functions. Reasonable accommodations might also mean modifying a policy, perhaps temporarily, if it would enable an employee to return to work.
A fundamental requirement of disability discrimination laws is that an employer must engage in an “interactive process of accommodation” with the employee. That means having a meaningful dialogue with the employee about the possibilities for accommodations that might allow a return to work, and whether any of those possibilities is reasonable under the particular circumstances.
Enter the EEOC
One accommodation that employers often fail to consider is extending leave past the limits normally available under the FMLA or other leave policies. Another possible accommodation: allowing workers to return temporarily to positions different from their original jobs.
Failing to consider offering a qualifying employee extended leave or a temporary position has landed a number of employers in trouble with the EEOC.
In EEOC v. Sears, Roebuck & Co., a court approved a $6.2 million settlement involving Sears’ automatic termination of employees whose leave expired under the company’s policy on workers’ compensation absences. The EEOC alleged Sears violated the ADA duty of accommodation by refusing to consider allowing employees to return in a different capacity or granting a brief extension of leave.
In a similar case, the EEOC sued UPS, requesting class-action status and alleging that UPS’ denial of additional leave after the policy maximum had been reached was a failure-to-accommodate violation of the ADA.
The last thing you want is for your organization to end up in court because of easily avoidable leave issues.
And while every case is different, HR and supervisors have to apply a consistent leave policy – one that treats people fairly while keeping disruptions to a minimum.
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In EEOC v. Supervalu, Inc., the EEOC alleged the employer violated the ADA by prohibiting employees from returning from disability leave unless they could return to “full service” employment without any medical restrictions. The lawsuit also alleged that Supervalu unlawfully prohibits employees not injured on the job from participating in the company’s 90-day light-duty program.
And in EEOC v. Princeton HealthCare System, the EEOC alleged ADA violations because the employer allegedly terminates employees who have no FMLA eligibility if they cannot return to work within seven days, and refuses to grant any leave beyond the 12 weeks required by FMLA.
The suit further alleges that Princeton HealthCare grants no exceptions to these policies for qualified individuals with disabilities who need additional leave as a reasonable accommodation.
Check your leave policies
These cases demonstrate the increased risk faced by employers with inflexible leave policies or light-duty programs available only to certain categories of employees.
Here are two principles to keep in mind to avoid legal difficulties:
- Your policy may set a maximum leave period, but you must be willing to at least consider accommodating a qualifying employee by extending leave allowing him or her to return to work in a different or modified position.
- You should generally consider light duty for a qualifying employee with a disability on the same basis as other employees. Any program that limits the availability of light-duty jobs to a certain class of individuals—such as those who have experienced on-the-job injuries—risks violating the ADA unless you can establish a legitimate business reason for the difference.
Taking charge of employee leave can be a complicated process. There are tons of factors to take into consideration and millions of mistakes waiting to be made.
From improving your disability management to defining “reasonable accommodation” under the ADA and more, Employee Leave: Your 8 Biggest Problems Solved will keep employees at work and reduce your chances of being the target of a lawsuit.
Employee Leave: Your 8 Biggest Problems Solved
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- Vacation and Holiday Scheduling
- Absenteeism and Sick Leave
- FMLA Intermittent Leave
- Pregnancy and Maternity Leave
- Time Off as ADA Accommodation
- Workers' Compensation Leave
- Disability Leave/Return-to-Work Issues
- Military Leave