Return to Work: Best Practices

Since the 2020 pandemic, the logistics of "return to work" have taken on increased urgency. Employees returning to work after a prolonged absence may need accommodations. Small businesses may not have a human resources department to handle the back-to-work transition, so business owners must do the work themselves.

Federal and state directives give specific protections to workers returning from extended medical leave. Workers' compensation laws mandate a safe worksite before and after work-related injury or illness. Developing a safe workspace is an interactive process and involves the worker, the employer, and HR professionals.

Returning to Work: Relevant Laws

Many different laws and agencies contain return-to-work requirements. These laws include:

• The Americans with Disabilities Act (ADA): Employers must make reasonable accommodations for workers with "substantially limiting" disabilities. A temporary condition like a broken ankle does not qualify, but pregnancy does. More recently, long COVID has been classed as a disability.
• The Family and Medical Leave Act (FMLA): Covered employees may take up to 12 weeks unpaid leave to recover from serious illnesses or injuries. They must return to the same job or an equivalent job with equivalent pay, benefits, and responsibilities.
• Workers' compensation laws vary by state, but all require some form of return-to-work plan. The intent of workers' compensation is to return employees to work as soon as possible. Employees may have work restrictions from the doctor that must be accommodated for their return to work.

State leave and disability laws may be more restrictive than federal laws. For instance, California's Fair Employment and Housing Act (FEHA) applies to businesses with five or more employees, so more small businesses must follow it.

The Equal Employment Opportunity Commission (EEOC) enforces state and federal rules about disability accommodations. You may need to verify your return-to-work model with the EEOC before implementation.

Job Descriptions and Essential Functions

The ADA requires job descriptions to contain a list of the position's essential functions. Essential functions are duties fundamental to the job that cannot change without altering the job. Employers are not required to make reasonable accommodations that would alter an essential function of the job.

For instance, being a delivery driver requires the ability to drive a vehicle. Suppose an employee returns from medical leave with seriously impaired vision and cannot get a state driver's license. In that case, the employer is not required to let the delivery driver take a taxi to make deliveries.

Fitness for Duty Certification

An employer may request a fitness-for-duty certification. A health care provider completes this form. It states whether the employee can perform the essential functions of the job. If there are any limitations, the certification must say what they are and how they limit the employee's abilities.

The Interactive Accommodation Process

The interactive process between the employer and employee before the employee returns to work helps ensure a good transition from leave to the work site. There are no regulations for a return to work, although some state laws may have specific guidelines. Things to consider may include:

• Review Essential Functions: These include employee work hours and the business work schedule. Will the worker's limited hours or days affect business operations?
• Consider On-Site Versus Remote Work: The pandemic has made remote and hybrid work options attractive for employers and employees. A worker with too many restrictions to return to full-time office work can still manage a remote or hybrid schedule.
• Discuss Job Reassignment: The FMLA and many state medical leave laws require employees to return to their own or equivalent positions. If they cannot return to the same position for business reasons, you'll need to talk to them about alternative positions in the company.

Workplace Safety and Return to Work Plans

The pandemic created new concerns for employers and employees regarding medical leave. Coronavirus is still with us, and so are flu and other diseases nobody wants to have. To keep your work environment free of flu outbreaks and minimize the number of workers who need medical leave, encourage these workplace safety practices:

• FMLA leave may be taken in increments. If workers take leave because of illness or to care for family members, encourage them to remain home until everyone has recovered. Consider telework options until they can safely return.
• Permit the use of face masks or coverings and other personal protective equipment (PPE) at personal workstations, especially in areas of high public contact.
• Encourage the use of hand sanitizer in restrooms and public locations. During flu season, make a habit of disinfecting common in-office items like keyboards and office phones.
• Some employers can require workers to have the COVID-19 and flu vaccines as a condition of employment or return to work. It's better to encourage a workplace concerned for the health and well-being of everyone without worry over exemptions and arguments about vaccines.

Get Legal Help for Questions

Whether reopening after a public health crisis or having a single employee return from medical leave, an employer needs a return-to-work plan for all workers. Discuss the laws and requirements with an employment law attorney in your area.