As many HR Professionals know, an employee on a leave of absence may be covered by a myriad of laws and regulations. It often feels like a relief when an employee declares that they are ready to return to work. But what if the employee has restrictions on their activity? At Helios, we hear from companies all the time who are unsure whether or not they have to accommodate restrictions. They’re unsure if they can ask for more information and how to filter the information they receive. Understanding your legal obligations is important; and it’s just as important to have an integrated process in place to minimize employee relations and compliance issues.
The Top 5 Questions From Employers Regarding Return to Work Scenarios
1. Do I have to accommodate an employee’s work restrictions?
The short answer is that you are not required to accommodate any and all work restrictions. However, The Americans with Disabilities Act requires you to engage in an interactive process to understand the restrictions. You are required to make a “reasonable” accommodation for the employee, as long as making that accommodation would not impose “undue hardship” on your business.
2. How do I determine if the accommodation is reasonable or if it would create undue hardship?
This is perhaps the most challenging part of navigating return to work issues. The truth is that “reasonable” and “undue hardship” are both subjective and relative terms. When deciding if an accommodation is reasonable, you should consider if there’s any precedent for similar accommodations in the past at your company. You can also look at your overall resources. A company like Dell would not face an undue hardship if they had to bring in a tradesperson to modify someone’s desk or workspace. But if your company has 20 employees and your finances are not robust, it may be easier to argue that an expensive accommodation imposes undue hardship.
3. Can we ask the employee for additional information?
Yes! In fact, the Americans with Disabilities Act requires you to engage in a good faith interactive dialogue. The purpose of the dialogue is for you to exchange information with the employee. You can request additional medical paperwork. If your employee signs a release, you may even choose to speak directly with the medical provider to gather more information. For example, an employee suffering from depression may return to work and request a corner office with sunlight as opposed to a cubicle. If there are no such offices available, it may be worth engaging in an interactive dialogue to find out from the employee and the physician if a sun lamp at the employee’s desk would be equally effective.
4. Are there situations where it’s advantageous to consider accommodations?
In general, it’s always best to accommodate an employee if possible. Not only is a reasonable accommodation legally required, failure to accommodate can impact employee morale. Furthermore, if the employee is collecting wages, either through a disability policy or through workers’ compensation, your company has a very real financial incentive to return them to work. Workers’ compensation and disability insurance are both experience rated so the more employees use the benefit, the more expensive the premium becomes for the employer.
5. If we are unable to accommodate someone’s restrictions, how can we protect ourselves?
Document, document, document. To demonstrate good faith and due diligence, make sure that you have ample documentation of your efforts at interactive dialogue. Keep in mind that many courts have ruled additional unpaid time off beyond the exhaustion of FMLA may be a reasonable accommodation for someone whose condition may improve with more time. Finally, offering severance in exchange for a release of claims may also be prudent. If your company wants to pursue this, you should consult with legal counsel.
While these scenarios are always tricky, the above tips should ensure that your company acts with integrity and in accord with major laws.