I have an injured employee coming back…Now what?
Despite all the precautions, trainings, instructions, and safety measures that you take, employees get hurt. Many times, the employee is able to return to work without restrictions. However, there are times when an employee will have some restrictions upon returning. In order to be compliant with the California Labor Code, Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA) there are several things that employers should do when the employee is cleared to return to work.
Step 1: Review
Review the restrictions. Do they make sense? Are they clear? If the answer is no, then seek clarification from the doctor that is providing the restrictions. Do not guess at the restrictions. You will also need to know if the restrictions are permanent or temporary.
Step 2: Evaluate
Once you have a clear understanding of the restrictions, evaluate them with the management team, including HR and risk management. Can they be accommodated? Are they reasonable? There is no objective test for reasonableness of an accommodation. Generally, if you have to buy a $10 tool to allow the applicant to perform 100% of their essential duties it is probably reasonable, however, if the cost is $10,000, it probably is no longer reasonable. Keep in mind that the accommodation is only effective if the employee is able to perform 100% of the essential job duties.
Step 3: Analyze
Discuss with the employee. Sit down with the employee and the employee’s manager to analyze the restrictions and proposed accommodations, get the employee’s input, and make sure that the employee understands the restrictions and how you are going to assist the employee in returning to work. Does everyone agree to the accommodations? If there is no agreement to the accommodations that are to be implemented, then do not implement those in dispute. The interactive process is not a “one shot” discussion, rather it is a constant interaction to determine if the agreed accommodations are effective. (See Humphrey v. Memorial Hospitals Assn. (9th Cir. 2001) 239 F.3d 1128.)
Step 4: Document
Put it in writing. Once there is an agreement, put it in writing so that you and the employee can refer back to it if necessary. Make sure that it is signed by the employee and management.
Step 5: Yes or No
Are the accommodations working? If not, go back to step 3. If they are, then continue the accommodations. Remember that once an accommodation is given, the employee should continue to receive that accommodation as long as it is effective and necessary. (See A.M. v. Albertsons, LLC (2009) 178 Cal.App.4th 455.)
What about having a blanket policy that an employee has to be 100% healed before returning? Such a broad, blanket policy is generally unlawful. (See Gelfo v. Lockheed Martin (2006) 140 Cal.App.4th 34.) The reason that these types of policies are disallowed is that doing so would severely undercut the purpose of the ADA and FEHA.
Remember that each situation is unique. Sometimes a restriction cannot be accommodated, however, you are always required to engage in a good faith interactive process with the employee. When you have to do so, follow these steps and you should be READY.
