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.2
30% of all charges filed with the EEOC are employee disability discrimination claims.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 (https://www.eeoc.gov/policy/docs/ accommodation.html).
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.
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.
Employee disability discrimination claims are the third most common cause of complaints or suits filed with the EEOC.3
Failing to have and follow a thoughtful and thorough process could result in a claim or lawsuit. Indeed, employee disability discrimination claims are on the rise — with a record-breaking number of claims filed in 2016.3 As a way to assist in mitigating your exposure, we are sharing some fact scenarios that if the employer handled the situation differently there may not have been a claim and subsequent settlement.
THE EMPLOYEE TERMINATED WITH A BACK-DATED LETTER: $200,000 SETTLEMENT
What happened: An HVAC installer suffered a knee injury and went on a covered leave. When the employee said he was returning to work, the employer sent a back-dated letter stating that because leave had been exhausted and the company had not heard from the employee, the company would consider him to have resigned. The employee claimed that he had provided a doctor’s note extending his leave and should not have been terminated. The employee alleged disability discrimination, failure to accommodate and engage in an interactive process, retaliation, and wrongful termination. The settlement was for $200,000 in favor of the employee.
Reflections from our defense team: The employer should have engaged in proactive communications with the employee to plan and prepare for a return to work, used trackable methods such as email and certified mail for these communications, and warned the employee before terminating his employment.
POOR PERFORMER TERMINATED FOR NO CALL/NO SHOW: $150,000 SETTLEMENT
What happened: An office manager was terminated after being out on sick leave. She turned in a doctor’s note and then had the leave extended two days later. While she was out of the office the owner discovered that she had not billed their clients for months and the company was losing money. The termination letter stated she was dismissed for failing to report to work for two days. The company claimed it never received the second doctor’s note. She alleged disability discrimination, failure to accommodate and engage in interactive process, retaliation, as well as wage and hour violations. The settlement was $150,000 in favor of the employee.
Reflections from our defense team: If a company requires documentation for a leave, it is incumbent on them to request and follow-up via trackable methods.
Also, terminating an employee while on leave is risky. In most circumstances, an employer should only consider termination after the employer has made the employee aware that termination is possible if the employee does not fulfill their employment responsibilities and obligations.
GENERAL LABORER LAID OFF TOWARD THE END OF EXTENDED MEDICAL LEAVE: $30,000 SETTLEMENT
What happened: A general laborer hurt his wrist at home and took a short permitted leave. He then presented a note, calling for an extended leave, which was approved. Next, the laborer brought in a note saying he could work with extensive restrictions, or be considered disabled and remain on leave for the next month. His employer again let him take medical leave, but then terminated him two weeks later. The employer claimed that it no longer had a need for the position due to financial reasons. The employee sued for disability discrimination, retaliation, failure to prevent discrimination and retaliation, failure to provide reasonable accommodations, failure to engage in an interactive process, wrongful termination, and declaratory judgment. The settlement was $30,000 in favor of the employee.
Reflections from our defense team: This is the classic case of an employer believing that it doesn’t need an employee once he goes out on leave, and based on cost savings and efficiencies, terminates the employee. The leave laws are designed to prevent this exact situation and the courts rarely look with favor upon any employer who terminates an employee while on medical leave.
$131 million in damages were collected for individuals harmed by disability-based discrimination at work.4
Connect to protect
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Contact us to learn more about how employment practices liability insurance can help protect your business.
For more information about how to help employees return to work, visit these websites.
1 Employee Equal Opportunity Commission 2016 Enforcement and Litigation Data
2 Helping Injured Employees Return to Work, California Department of Industrial Relations
3 Employee Equal Opportunity Commission 2016 Enforcement and Litigation Data
4 Equal Employment Opportunity Commission (EEOC)
Equal Employment Opportunity Commission
Best Practices in Returning an Injured Employee to Work fact sheet
119-10021 (11/17) LC 2017-489