Monday, September 21, 2015

Exhaustion of FMLA Leave is Only the Beginning

Let’s say that you have an employee who injured himself on the job.  He’s been out of work for four and a half months. He was found eligible for worker’s comp. The first thing you did was place him on FMLA (yes, an employee can be placed on FMLA for an absence due to a work related injury). When that 12 weeks was exhausted, he chose to start using his accumulated benefit time (of which he has a substantial amount). Another six or seven weeks went by and you receive a note from his doctor that he can return with certain restrictions for an unspecified period of time which prevent him from performing all of the essential functions of his job. Now what?

The first thing to do is to remember that even though everyone’s patience has run thin by this point, it’s not time to conclude that you’ve done all that you can for this employee and the only thing left is to sever the relationship. In fact, this is the time that it’s more important than ever to ensure that proper procedures are followed in analyzing the employee’s workplace rights.

1. If the employee is represented by a union, check the union contract. Sometimes parties negotiate a length of time that they agree is reasonable for an employer to allow an employee to be on leave.
2. Clarify the restrictions and the anticipated length of time that the restrictions will be in place. If the restrictions are likely permanent, that allows for a different analysis than restrictions for an anticipated finite period of time.
3. If the restrictions are not permanent, consider whether a light duty assignment is available. In considering this, remember that a light duty assignment can be a temporary assignment to another position for which the employee can perform the essential functions (a job where the employee who usually fills it on himself on leave) or a modification of the employee’s existing job (or another job for that matter) which accommodates the employee’s work restrictions. 

Two things that a light duty assignment does not have to be are 1) “make work” and 2) forever. The employer does not have to create a job just to offer light duty  and the employer does not have to offer a permanent light duty assignment. For instance, if a special project of  reorganizing the records department needs to be done, and the recovering employee can do that project, then he or she can be given light duty for the duration of that project.  If another appropriate project is available at the conclusion of the first one, then consider that assignment but employers have no duty to create work for an employee with work restrictions. Always document the reasons that light duty was not given.

4. If restrictions are permanent, no light duty assignment exists, or the employee has exhausted light duty, it is time to consider your responsibilities under the ADA. First determine if the injury or condition of the employee is a disability under the ADA. Frankly, most conditions, except temporary injuries that will heal completely,  are covered. An employee has an ADA protected disability if their condition substantially limits a major life activity. The statute identifies major life activities as follows:

major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. …[A] major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

5. If the employee is likely covered by the ADA, then engage in the interactive process. It’s easier AND harder than it sounds. The interactive process is supposed to be a conversation between the employer and the employee where they talk about possible ways to accommodate an employee’s  condition so that he or she can perform the essential functions of a job. The employer has the obligation to offer a reasonable accommodation, but not the BEST accommodation or the one that the employee wants most of all. 

It might be pretty easy to figure out what accommodations exist (or don’t). If the employee is restricted from climbing ladders and that is 5% of the job, and the employer can rearrange two jobs so that one does all the ladder climbing and the other takes some responsibilities from the first job – then the interactive process is done and a reasonable accommodation is developed.  

The problem is when the employee is restricted from climbing ladders and that task is 25% of the job and the employee suggests a more complicated swap of duties among co-workers to accommodate him or her and the employer wants to just place the employee in a job for which the employee is qualified and which does not require ladder climbing but is a different  shift, or it pays less. That’s when an employee often becomes stubborn because they want what they want and they don’t see why the employer can’t just do what they ask.  The employer, on the other hand, is sometimes resentful that the employee doesn’t just feel lucky to have a job.

This is the right time to again explain the rationale for offering the accommodation and review all the available options with the employee. It’s also a good time to document the employer’s considerations in the process and the rationale for the offered accommodation.  

Remember too that additional time off to complete the healing process can also be a reasonable accommodation.  If  the employee’s doctor believes that another four weeks at home recuperating will result in the employee being completely fit for work, employers should usually think of it as the light at the end of the tunnel if possible and grant the unpaid leave. Of course if the doctor is uncertain that the employee will be ready to return to work, then a more in depth analysis of the burden on the workplace for additional undetermined absence is necessary.

6. If no reasonable accommodation exists, the employer needs to well document that fact. If working on ladders is 50% of the job and ladder work cannot be redistributed, and no other jobs are available for which the employee is qualified, document and explain to the employee why the position could not be modified to accommodate the employee’s restrictions. If additional leave is unreasonably disruptive, be sure to document those circumstances. Show, for instance, the increase in overtime or subcontracting that cannot be attributed to another reason. If morale in the department has suffered, show how that has happened, for instance if vacations had to be canceled, and sick leave use has increased for no other apparent reason. If projects have been postponed due to staff shortage, attributable at least in part to the employee’s absence, note that as well. The time and trouble it takes to perform this audit will be well worth it if you have to defend your decision.

As the saying goes, it’s not so much the destination, but the road you take to get there.  Make sure you hit all the spots along the way.