Do things right, and return to work won’t go wrong

Employers can take steps to avoid mistakes

When an employee is out of work for an extended period with an injury or illness, his or her absence creates a physical and emotional void. The work needs to be done, and co-workers and supervisors look forward to the employee’s return. That is, unless the employee isn’t really wanted back.

While a boss might think that preventing an employee from returning from leave is a convenient way to terminate employment, it could be the first steep step into a lawsuit, according to Jeffrey M. Tanenbaum, JD, a San Francisco-based attorney specializing in employment law and occupational safety and health administration law.

Tanenbaum says his clients — employers — encounter problems not because they want to get rid of employees because of their injuries or illnesses, but because of performance problems that existed before the worker went on leave. "When you have someone who simply has not been a good performer, forgetting about the injury or illness, the employer needs to deal with [the poor performance]," he explains. "And the best way to deal with it is to have documented it before the employee ever went out on leave."

Otherwise, if the employee comes back and the employer chooses that point to tell the employee that his or her performance is not working out, "the timing looks suspicious to the employee and to any judge who might hear the complaint," Tanenbaum pointed out. "Even if the employer’s intentions are good, you can get into trouble if you haven’t documented."

Reasons to complain

Employees terminated during a leave, or who feel their right to return is not being honored, can lodge a grievance for several possible causes, including:

  • The Americans with Disabilities Act prohibits adverse action against an employee who is able to perform the essential functions of his or her job "with reasonable accommodation," which can include a reorganized work station, reduced hours, or a flexible break schedule.
  • The Family and Medical Leave Act prohibits employers’ interfering with guaranteed family or medical leave, and prohibits retaliation against employees who take advantage of leave.
  • An employee who files a workers’ compensation claim cannot be terminated because of that claim. The penalties for such termination can be costly.
  • Violation of the implied contract in the employer’s internal policies.
  • Violation of a written contract or collective bargaining agreement.

An offer the employee can’t refuse?

An option an employer can use is to provide a severance package to the employee, in exchange for release of all claims against the employer, Tanenbaum says. On the one hand, an attractive severance package gives the employee the opportunity to find a new job while drawing a salary — "an extended vacation, if that’s how they want to view it," he says. "The downside is the moment you start talking about severance, in their mind, they no longer have a job. They might very well start thinking about a lawsuit because they’re not being provided with their rights to return under the law."

Disputes over wrongful termination relating to employee leave are common, but they commonly are settled before ever going to trial. Proactive steps, which Tanenbaum says "are just good HR [human resources]," and can avoid disputes later on.

When the job or worker has changed

Another issue that can arise when it’s time for an employee to return to work is when there’s no job to come back to.

"What do you do when the workplace has changed while the employee has been off? For the most part, the law gives employers additional discretion if the job the employee left has been eliminated as part of a layoff," he adds. "However, the employer will still be scrutinized for a nook job that person could fill."

In other cases, it’s the employee who has changed. "I recently had a case in which a senior executive was in a car accident and sustained a severe head injury," Tanenbaum recalls. "When he returned, his ability to concentrate was limited, his cognitive abilities were severely impacted, and he was no longer capable of serving in an executive capacity."

This person was fortunate — his company found another position for him and is supportive as he struggles with memory lapses that cause him to forget he’s no longer a senior executive.

A situation like this could prove to be a hardship for some employers, but Tanenbaum says the law expects it to be. "It’s a cost-shifting set of laws," he says. "They simply put the burden on the employer to bear that, and with more than 10 or 20 employees, it’s hard to show that it’s a hardship. Certainly, with larger employees — 100 or 200 employees — it would be incredibly hard to show hardship."

Employee policies

Employers inadvertently can give employees a wrongful discharge claim by making certain promises in their return to work policies and then violating them. "They have written extensive policies that go beyond the legal requirements, and then they don’t follow their own policies," Tanenbaum says. "Handbook policies are as enforceable as some statutes."

He says employee policies, whether they address human resources issues or safety, should be written as required by law. "And if you add any extras, you’d best do what you say you are going to do," Tanenbaum says.

Another fairly common mistake employers make that can come back to haunt them when an employee goes on leave is neglecting to include a cutoff date for certain types of leave. Workers’ compensation is not subject to preset cutoff dates, but other types of leave — maternity leave, for example — should have cutoff dates specified. "Sometimes the policy is not written well enough for employers to say, You have no more leave,’ and you can’t get them back to work; it’s like the reverse of return to work," Tanenbaum says.

Another hot-button issue for employees and employers in return to work situations is when employers are required to make "reasonable accommodations" to allow the employee to resume his or her job. "The Americans with Disabilities Act or state law will say you must accommodate that employee, whether it is a change in the work station to accommodate a disability, a computer with dexterity assistance, aids for vision or hearing loss," Tanenbaum explains.

When faced with making accommodations for an employee’s return to work, employers need to "engage in an interactive process to determine what a reasonable accommodation would be," he says. "There are a lot of reasonable accommodations readily available, and they are affordable — many cost less than $1,000. It’s hard for an employer to say that’s a hardship."