How to Return an Injured Employee to Work Without Getting Sued

May 01, 2008 

 

The return-to-work (RTW) process for employees who are injured or suffer an illness, whether sustained on the job or not, can be confusing for businesses of any size. But small businesses in particular, usually lacking in-house lawyers or dedicated HR staffs, often suffer serious legal pains when a botched RTW effort triggers a lawsuit.

Attorneys say there's no exact science to doing it right, which is part of the problem. Pending legislation calling for the creation of an employer guidebook on the issue may at least demystify the process (see related article in today's edition). 

But employers usually can avoid legal trouble by accessing the appropriate information from physicians, engaging the injured employee in an interactive process and documenting it, understanding what constitutes a sufficient accommodation and familiarizing themselves with the various employee leave and non-discrimination laws associated with the RTW process, attorneys say.

Still, it doesn't hurt to call legal counsel first to make sure.

"In most cases, it's advisable to at least make a phone call to your attorney, even if it's just for a few minutes," says Los Angeles attorney Angela Reddock, of counsel with Strategic Counsel PLC. "The law has no exception for small employers or lack of legal know-how."

Appropriately Determine Limitations

First off, employers may not just come out and ask what an employee's disability is. To do so could trigger discrimination liability under the state's Fair Employment and Housing Act (FEHA), attorneys say, since merely inquiring gives the impression of willful bias should a dispute arise. But employers still need to know how the disability affects a worker's ability to perform, which they can do by asking for a list of restrictions from the employee's physician, says attorney Nikki Hall.

"Sometimes people will just say what their disability is, but doctors are good at saying what an employee's restrictions are [without giving too much information]," Hall says. "But if someone has a workers' compensation injury, it usually will be obvious to the employer what that disability is."

She says if the disability were psychological in nature, clinical depression for example, the employee naturally would not want that made public. Likewise, the employer would not want the appearance of retaliation in the event that this person has to be terminated at a later date.

Not all work-related injuries are considered disabilities under FEHA, but some are. Attorneys say this is determined on a case-by-case basis and might not be clear until the employee reaches his or her "maximum medical improvement," or MMI, stage.

"Let's say I bash my head into an open file cabinet and I get pretty serious head trauma. I return to work part time with some migraines and short-term memory problems, but I continue to improve," says Sacramento attorney Mary Farrell, a partner with Murphy Austin Adams Schoenfeld LLP. "Then I reach the MMI stage, where the doctor says I am as good as I'm going to get."

At that point the employee most likely has a disability under the law. But up until that point, Farrell says, it is still unclear what an employer's obligations are under FEHA or, to a lesser extent, the Americans with Disabilities Act (ADA).

California law is much more employee-friendly, requiring that a disability limit a person's major life activities, if only slightly (federal law requires the disability to "substantially" limit major life activities). Attorneys say it is always best to follow the jurisdiction that favors the employee the most, in this case FEHA over ADA.   

Engage the Employee in an Interactive Process

Although FEHA does not explain in detail how it should be carried out, employers and employees must engage in a so-called "interactive process" to determine how the employee's limitations can be accommodated. This is one area that often confuses small businesses, says Scott Hauge, president of San Francisco-based advocacy organization Small Business California.

Although this process is not scripted, FEHA says this process must entail a comparison of the employee's abilities and limitations with reasonable accommodations to his or her current position and other positions within the organization. By mandating an "interactive" process, the statute expressly bars employers from making any unilateral decisions, Farrell says, and may require "returns to the table" before any decisions are made.

If done improperly and followed up with a failure-to-accommodate lawsuit, a court can award a plaintiff three years of lost wages plus damages for emotional distress, she says. Since FEHA provides no specific guidelines, though, employers may worry whether they have done it properly. But Farrell says employers that make a good faith effort to engage the employee and document everything usually have little to worry about.

"You'll find your safe harbor in your well-documented interactive process, including what information you evaluated and which options you identified.  You want this whole body of documentation to defend your decisions," Farrell says.

Since a lawsuit can come up to three years after an accommodation is made for a disabled employee, attorneys suggest maintaining documents for that long. 

Be Careful When Considering Alternative Positions or Termination

If an employee is out for 12 weeks of unpaid leave for a non-work-related injury or illness, as provided by the federal Family Medical Leave Act (FMLA) or the state's equivalent California Family Rights Act (CFRA), the employer is required to reinstate that employee in the same or equivalent job, says Irvine attorney Veronica Gray. If there is a reduction in force, however, the employer may claim undue hardship.

If the doctor says the employee needs more time, she says, an employer would want to see if that person qualifies for disability protections. If so, the two parties would engage in the interactive process discussed earlier. But what if it's clear that the employee is not coming back to work?

"If the condition is medically permanent and precludes them from coming back to their customary job [and there are no alternative positions], then termination should not violate [Labor Code Section] 132a," says Gray, partner with Nossaman, Guthner, Knox & Elliott LLP, and chair of the firm's employment practice group.

In other words, the employer would not want to do anything discriminatory and would want to document its good faith effort to accommodate the employee, according to the text of the code section. Again, this goes back to the importance of a well-documented interactive process.

But the law does not necessarily require an employer to reassign a returning, and newly disabled, employee if they are not qualified for the position, Gray says. However, Hall points out, employers are required to accommodate a disabled employee by reassigning them to another position if they are reasonably qualified, which is determined on a case-by-case basis. Even if another employee is more qualified, she says, preference goes to the disabled employee.

"It always causes a lot of surprise when I mention it to employers. But it's not as common," Hall says.

And under no circumstances should an employer terminate an employee after an injury or illness, attorneys say, even if it's mutually assumed that they won't be coming back.

Cultivate a Basic Understanding of the Law

Attorneys say much of the underlying legal context of RTW procedures is beyond the scope of a business owners' already numerous duties, insisting that employers at least contact legal counsel before making any decisions that could come back and flat-line a business. But it's important to know which laws come into play in these situations.

The state's medical leave provisions under CFRA are nearly identical to the federal equivalent FMLA, except that CFRA covers registered domestic partners and excludes disabilities due to pregnancy, birth or related medical conditions. However, California does offer up to four months of pregnancy disability leave under a separate statute.

FMLA and CFRA both allow up to 12 weeks of unpaid leave to care for a family member, including new provisions for military families.  

California's FEHA and the federal ADA tend to come into play once an employee has been determined to have a disability, since they protect disabled persons from discrimination or retaliation. Generally speaking, though, FEHA provides broader protection for employees, so attorneys suggest following FEHA guidelines instead of the weaker ADA guidelines.

The nuances of these laws are too numerous to cover completely in this article, but just understanding that the RTW process is a gauntlet of potential liability can go a long way in preventing costly lawsuits. As with any law, ignorance is no defense.

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