Most states have comprehensive workers’ compensation laws. Most workers’ compensation systems entitle employees to a period of leave to recover from their injuries and prohibit employers from discriminating against employees who suffer workplace injuries.
Other laws can entitle employees to time off due to disabilities – both work-related and otherwise. If the employer has 50 or more employees, the Family and Medical Leave Act (FMLA) entitles employees who have worked 1,250 hours in the preceding 12 months to 12 weeks of unpaid leave each year. The Americans with Disabilities Act (ADA) requires employers with 15 or more employees to reasonably accommodate employee disabilities, which in some cases can mean time off work. Many states have state laws that provide leave rights equivalent to or greater than those provided by federal law. For example, the California Family Rights Act (CFRA) closely mirrors the FMLA in most respects, and California’s Fair Employment and Housing Act (FEHA) requires employers of five or more employees to accommodate employee disabilities.
How can an employer integrate its obligations under the various state and federal laws that regulate these leaves of absence? How can an employer prevent and discourage abuse of these leaves? The good news is that an employer can ensure compliance and promote the return to work by proactively taking control of leave administration.
All employers should understand that their actions during the leave will be judged based on hindsight, sometimes after the passage of a long period of time. It is very important to put down employee obligations and communications in writing so that a picture remains in place of the employer’s efforts to get the employee back to work.
There should be an employee handbook containing a clear policy on leaves of absence addressing requirements to report injuries immediately, what an employee must do to request time off, what is required in terms of medical restrictions and certifications and what communications are expected of employees during the leave and return-to-work process. During the leave, the employer should communicate by letter with the employee and should use a method that confirms delivery where appropriate. If there is a phone conversation or meeting, notes should be retained, and a letter should be sent after the call or meeting to clearly inform the employee of the status of the situation.
With any type of leave, the employer should immediately send a letter requesting current work restrictions for the evaluation of temporary light-duty work, and should notify the employee of his or her obligation to provide updated work restrictions. As a general rule, employers should require updated work restrictions at least every 30 days or every time the employee sees the doctor, whichever is more frequent.
Work restrictions and light duty
An important element in preventing leave abuse is obtaining work restrictions from treatment providers and designing appropriate temporary light-duty work. Privacy laws prevent employers from obtaining medical reports, but nothing limits an employer’s right to obtain a written statement from the doctor stating what types of activities the employee can and cannot perform. Light-duty work assignments should be prepared in writing and should be identified as temporary assignments to be evaluated every 30 to 60 days. The employer should review the assignment with the employee and have the employee sign off in agreement that he or she can do the light-duty assignment.
The first letter should remind the employee of the obligation to provide current and updated work restrictions at regular intervals. If the employee ignores repeated requests for updated work restrictions, the employee’s credibility will suffer when he or she claims she had a strong desire to return to work. If the employee continually refuses to provide restrictions, the employer can notify the employee in writing that a failure to respond will be treated as job abandonment and the employee will be replaced if no response is received. Using certified mail for these purposes will be important to prove that the employee actually received the requests for restrictions.
Light-duty work is an important part of the leave process. In many states, workers’ compensation pays a wage replacement benefit to workers during a leave due to an industrial injury, and this benefit can often encourage the employee to stay home. In California, the costs of these benefits are passed on to the employer through increased premiums. But in California, a worker who returns on a light-duty work assignment at no reduction in pay does not receive this benefit, and the employer can control the increase in its premium by limiting the cost of the claim. All employers should educate themselves about what benefits are paid under their state’s rules and how they can affect those benefits and control premium increases.
The kind of work given in a light-duty assignment is also important. The best light-duty assignments are chores that always need to be done, but don’t ever seem to get done. These are jobs that tend to be boring and isolated. Examples include painting fences; cleaning manure off of rails, stanchions and walls; inventory of parts, tools or supplies; and other similar tasks. One California farmer assigned an employee to spend eight hours a day in a chair with a jug of water watching an employee parking lot where some cars had been broken into. Employers must avoid light-duty assignments that are more comfortable or more pleasant than the employee’s regular work, as such assignment will not create an incentive to return to regular work.
Employees will often complain that the light-duty work is too difficult for them. If this happens, the employer should send the employee back to his or her doctor for new restrictions and should repeat the process again. In some cases, this cycle will repeat several times. All this does is create a record that the employer is making his or her best efforts to return the employee to work, which can undermine allegations of discrimination that may arise later.
Return to regular work
At some point, the employee’s medical provider will determine that the employee has reached maximum medical improvement and will not improve with further treatment. At this point, employers must evaluate the employee’s return to regular work. Employers generally do not have to create a new position for an injured employee, but disability discrimination laws such as the ADA do impose certain obligations in the return-to-work process. Employers must engage in an “interactive process” to determine if the employee can perform the essential duties of the regular position with or without some sort of accommodation. If the needed accommodation is reasonable, the employer must provide it as long as there is no undue hardship to the business. But the key is a back-and-forth communication between employer and employee to determine what, if any, accommodation is needed.
First, require the employee to present the doctor’s final work restrictions. Second, schedule a meeting with the employee to review the regular position and the restrictions to determine what accommodations the employee believes he or she needs. The employer is not limited to what the employee thinks is necessary and can suggest alternatives that will solve the problem. Carefully document this meeting, and send a follow-up letter confirming the result. Then provide the employee with a written, revised job description for the regular position that incorporates the agreed-upon accommodation. If there is no reasonable accommodation that will enable the employee to return, then carefully document why.
This process takes patience and commitment, but it will work to control the abuse of leaves and to limit legal liability. Honest employees who simply want to go back to work will comply with the employer’s expectations and will work with the employer to get back to work. Those who are malingering will either exaggerate their symptoms to such a degree that they will paint themselves into a corner where no reasonable accommodation will enable them to return, or they will fail to hold up their end of the process, enabling the employer to replace them.
All employers must make sure they understand their rights and obligations under their state’s workers’ compensation laws, as well as other state laws that may affect leaves of absence. But in almost all cases, this simple process will enable the employer to reduce the incentive for abuse and to maximize the productivity of labor. PD
The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with the author at McCormick Barstow LLP in Fresno, California at (559) 433-1300.