Return to Work: Best Practices

Employees who experience serious injuries or illnesses may require special attention when they return to work, often after extended periods of absence. Employers and workers alike benefit when the return to work process is handled in an interactive, comprehensive, and professional manner. Also, keep in mind that there are special protections and procedures for returning active duty service members to their civilian jobs.

Avoiding litigation, of course, is one of the main goals. State and federal laws protect workers with disabilities (even temporary), those on medical leave, and those with workers' compensation claims. However, a successful return to work process also can help boost productivity and morale, save your company time and money, lower workers' compensation costs, and retain key talent.

Returning to Work: Relevant Laws

The rights of workers who need time off for illnesses, injuries or for a qualifying disability are covered primarily by the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), state workers' compensation laws and state disability and leave laws. These various laws often intersect, which can create confusion for both employers and employees. Check the articles linked above for more details on relevant federal laws.

Also, you must comply with your state's corresponding disability and leave laws if they provide more coverage to employees than corresponding federal laws. For example, the California Fair Employment and Housing Act (FEHA) is much more extensive than the ADA, so California employers must comply with FEHA.

Job Descriptions and Essential Functions

Clearly stated job descriptions, including a determination of essential functions for each position, make compliance much clearer for employers. It is much more difficult for employers to defend against ADA lawsuits if job descriptions are ambiguous.

An employee returning from an absence resulting from an injury, illness or disability must be able to perform the essential functions of the job, with or without a reasonable accommodation. In determining essential functions, you might consider the following:

• Whether previous employees were required to perform the duty
• Whether removing this duty would drastically alter the position
• Amount of time spent performing the duty
• The overall goals and purpose of the position
• How many other employees are able to perform the duty

Fitness for Duty Certification

Before an employee returns to work, he or she may be required to obtain a fitness-for-duty certification (FindLaw Employee Rights Center). This form, completed by the employee's health care provider, states whether or not the employee is able to perform the essential duties of the job and which, if any, limitations he or she may have. A fitness-for-duty certification is not required but employers must apply this requirement to all employees if it all, according to the FMLA.

The Interactive Process

An interactive process between the employer and employee ensures that one or more reasonable accommodations are provided to help the employee overcome any such limitations pertaining to a disability (ADA) or work-related injury (workers' compensation). These limitations are detailed in the fitness-for-duty certification or otherwise discussed during the interactive process.

There are no specific rules for how to engage employees in the interactive process but the goal is to use open communication to determine possible accommodations. State laws may have more stringent requirements for this process. The interactive process may involve the following steps:

• Initiate the process: Contact the employee and discuss all issues (legal and otherwise) pertaining to the claim; address possible limitations and ways to address these limitations.
• Discuss the essential functions of the job: This is much easier to do if the original job description is clearly stated; review the essential duties, as well as the non-essential duties, and find out what the employee can and cannot do; document the conversation.
• Obtain information from the physician: In the absence of a fitness-for-duty certification, obtain work capacities (duties that can safely be performed) and work restrictions from the physician, making sure the process is transparent with respect to the employee.
• Evaluate accommodations: Asking for the employee's input, review possible accommodations and alternate jobs; determine whether the job can be performed with or without reasonable accommodation.
• Decide on an accommodation: Provide one or more accommodations for employee's original job; reassign to an equivalent job if necessary, either temporarily or permanently.
• Monitor and review the accommodation: Make sure the employee's return to work is successful, adjusting accommodations as needed; continue to communicate with the employee and document the process.

Get Legal Help

When an employee has returned from an extended leave of absence, perhaps because of a serious illness or active military duty, the employer must be extra careful to comply with the law while helping ease the transition. If you have any questions about whether your policy is compliant, you may want to meet with an employment law attorney.