Maintaining a rigid albeit consistent policy of termination upon expiration of FMLA leave, while once considered standard practice, is no longer advisable whether the leave is related to a workers’ compensation claim or not. In fact, such a policy could result in a hefty settlement with the EEOC similar to the $6.2 million dollar settlement with Sears, Roebuck & Co. This settlement resulted from a 2004 lawsuit complaining of an inflexible workers’ compensation leave policy with termination of employees without consideration of reasonable accommodations, in violation of the ADA.
The FMLA (Family Medical Leave Act) allows most employees to take up to 12 unpaid weeks of leave in a 12-month period under certain qualifying circumstances. The employer is required to allow the employee to return to the same or an equivalent position at the same rate of pay.
The ADA (Americans with Disabilities Act) provides equal opportunity for individuals with disabilities. Marginal or non-essential functions of a job must be forgiven and reasonable accommodations must be made to allow an employee to perform the essential functions of a job. Reasonable accommodations are considered permanent. Once the disability is known or an employee requests an accommodation due to a disability, employers must consider making a reasonable accommodation.
Examples of reasonable accommodations include providing a qualified interpreter, restructuring the duties or tasks of a job, adjusting a work schedule, modifying or obtaining equipment (wheelchair or specialized glasses…) among other things. Employers are not required to make accommodations that would create “undue hardship” for their business.
Accommodating disabilities is an individualized process. Every disability and every person is different and must be treated accordingly. Resources from different specialties may be needed to properly consider and make a reasonable accommodation including the employee’s direct supervisor who has intimate knowledge of the job requirements, a human resources representative, an ergonomic specialist, an occupational therapist and a safety and training specialist, possibly among specialists.
Maintaining a bank of current, quantified job descriptions is useful both in the hiring process as well as in making accommodations under the ADA. This bank serves in accommodating temporary restrictions for work related injuries. (workersxzcompxzkit).
Failure to comply with the ADA in making reasonable accommodations carries the potential for EEOC lawsuits resulting in costly settlements. The days of an across-the-board termination policy following expiration of a leave policy without ADA consideration appear to be over.
Author Rebecca Shafer, J.D. Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers' Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. She can be contacted at: RShafer@ReduceYourWorkersComp.com or 860-553-6604.
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
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