The Hanover Insurance Group

Reflections on real employee disability discrimination lawsuits

When employees go out on a covered disability or medical leave, employers have a legal obligation to help them return to work. However, many of these situations are complicated. Following best practices can help employees return to work—and avoid costly and time-consuming employee disability discrimination lawsuits.

California, a state with some of the nation's strictest employment regulations, recommends taking these steps to getting an injured or ill worker back on the job.1

  1. Contact the employee on a covered leave in a timely fashion. Explain the company's leave policy and provide any forms the employee may need to complete. While the employee is out, stay in touch, respectfully letting the person know the company is available to answer questions.
  2. Discuss with the employee the "essential functions" of the job. This will help put in place a plan to cover the employee's absence while also better understanding what accommodations the employee may need when returning to work. Suggest to the employee that this information be shared with the medical professional overseeing treatment. This list of tasks will aid the physician in determining when the person may safely return to work and if accommodations will be needed. "When in doubt, reach out," recommends Eric Marler from The Hanover Insurance Group's management liability claims team. "Proactively communicating with employees using trackable methods such as email and certified mail is an easy, but effective, way for employers to protect themselves against employee disability discrimination cases. Courts want to see that employers engaged in a timely, good faith, interactive process to help employees successfully return to work. And, in our claims experience, written documentation often plays a key role in resolving these matters and in some cases influencing the settlement amount."
  3. Obtain documentation, such as work capacities and restrictions from the employee's medical care provider and be ready to make reasonable accommodations to help the employee return to work. Examples of reasonable accommodations include, allowing time off for follow-up medical appointments, providing new equipment, restructuring responsibilities to those that are safe for the employee and considering a part-time schedule. For additional guidelines about reasonable accommodations, visit the Equal Employment Opportunity Commission.
  4. Implement and assess accommodations once the employee returns to work to be sure the return-to-work plan is successful, is continuing to help the employee recover and no additional accommodations are needed.
  5. Institute an official return-to-work program. Our return-to-work program toolkit provides sample forms, guidelines, a checklist and more to help get you started.

Employee disability discrimination claims are the third most common cause of complaints or suits filed with the EEOC.

Back to work is a win-win

Getting employees back to work safely, in a timely manner and in accordance with federal and state laws is a win-win. Employees preserve their full earning capacity while employers retain the employees experience and productivity, and are less likely to be involved in an employee disability discrimination claim or lawsuit.

Sources:

1 Helping Injured Employees Return to Work, California Department of Industrial Relations