Encouraging Employees to Stay at Work or Return to Work Without Running Afoul of the Law

Are your absence and disability managers jumping to conclusions when it comes to an employee’s need for a leave of absence? Taking the time to reassess and ensure that integrated absence management professionals are assessing all angles could help employees stay at work when possible.

When employees have difficulty working due to a medical condition, too many employers jump to providing a leave of absence without further analysis. That may be appropriate and even legally required in some cases, but employers should look at each situation on a case-by-case basis to determine the best option given an employee’s needs, medical condition, and applicable law. To illustrate this issue, consider this scenario.

Megan has worked as an administrative assistant for more than five years for a large corporation. Megan sustained a back injury at work, filed a workers’ compensation claim, and formally requested 12 weeks of leave for surgery and recovery under the Family and Medical Leave Act (FMLA). Her employer approved the request.

While providing Megan with 12 weeks of leave under the FMLA is certainly appropriate, employers should consider additional return-to-work (RTW) or stay-at-work (SAW) options. There are many compelling reasons to consider alternatives, including data that shows the likelihood of an injured worker returning to work drops 50% by the time the employee hits 12 weeks of leave.¹

Which Laws Apply?

Employers seeking SAW or early RTW alternatives must understand the following:

• The FMLA is a leave entitlement statute. Eligible employees often have the right to take FMLA leave even if they are able to continue working with an effective accommodation. Employers cannot require employees to accept a workplace accommodation in lieu of FMLA leave, but employers may discuss options and employees may accept an alternative arrangement provided they do so voluntarily and are not coerced.²
• Under the Americans with Disabilities Act (ADA), employers may offer a workplace accommodation instead of leave as an accommodation if the alternative accommodation is effective and does not interfere with employees’ medical care or recovery.³
• Workers’ compensation laws provide wage replacement for temporary or permanent disability as defined by the applicable state statute as well as medical treatment, vocational rehabilitation, time off, or light-duty work to employees injured at work.
• State paid and unpaid family and medical leave laws may also create leave entitlements that prohibit employers from requiring employees to accept an alternative work arrangement.

Alternatives to Leave

Identifying available and appropriate alternatives to leave requires a case-by-case assessment. In the fact pattern outlined above, the employer could check in with Megan during the leave. A friendly check-in may result in an open dialogue and a discussion of her ability to RTW earlier than expected on a limited or modified basis. Here are some alternatives that may work for Megan or employees in similar situations.

Light Duty

Megan may want to RTW earlier than 12 weeks if she is able to work in a light-duty position. Light duty typically means a temporary or permanent post that is physically or mentally less demanding than an employee’s normal job duties. This might entail excusing employees from performing some of the more demanding functions of their positions, transferring employees to different positions that are less demanding, or creating a position for a specific circumstance or employee.¹

Under the FMLA, employers may offer a light-duty job as an alternative to FMLA leave if this is approved by an employee’s doctor and if the employee agree. If the employee chooses to accept a light-duty position, the time spent working in that role does not count toward FMLA usage.⁴

With the ADA, light-duty positions may be appropriate if the employee cannot perform the  regular role and if there is no longer an effective accommodation available.  Even if there are other effective accommodations, an employee may still agree to take a light duty position. The law requires employers to offer these positions as an accommodation to employees with work-related as well as nonwork-related disabilities unless the employer can show undue hardship.⁵ And under workers’ compensation laws, employees who decline offers to work light duty may no longer qualify for benefits under the workers’ compensation benefit plan.

Modified or Part-Time Schedules

Megan could also consider RTW earlier than 12 weeks on a modified or part-time schedule. If this alternative is medically supported, Megan may take FMLA leave intermittently or on a part-time basis for treatment or recovery until she has used up the equivalent of 12 workweeks in a 12-month period.  If Megan is using FMLA intermittent leave, the employer cannot deny use of such leave even if it poses an undue hardship. Her entitlement to take intermittent leave or work a reduced schedule is required under the FMLA if medically necessary.⁶

Under the ADA, adjusting shifts, start/end times, periodic breaks, timing for certain functions to be performed, and other schedule modifications would be considered reasonable accommodations, according to the Equal Employment Opportunity Commission (EEOC). And if employers are unable to offer these options, the ADA permits them to prove undue hardship.⁷

Under workers’ compensation laws, a modified or part-time schedule may terminate or reduce the requirement for employers to provide temporary disability benefits, another important consideration.

Job Restructuring

Megan and her employer may also agree, due to her medical condition, to restructure her position so she can RTW early. Under the FMLA, Megan’s employer cannot change the essential functions of Megan’s job to deny FMLA leave⁸ but the FMLA allows employers to alter the function of an existing job to better accommodate and assist employees who want to use intermittent or reduced schedule FMLA leave rather than continuous leave.⁹

The ADA also permits employers to offer Megan a reasonable accommodation by redistributing any of her marginal job functions or altering when and/or how her job functions are performed. Employers are not required under the ADA to eliminate an essential function but can choose to do so or choose to reassign an essential function.¹⁰

Job restructuring may also affect workers’ compensation wage benefits, but it depends on the impairment, disability, and work restrictions. For example, if employees are working a full schedule at full pay with modified duties, they may not be eligible for wage benefits under workers’ compensation.

Transfer or Reassignment

Another option for Megan may include a transfer or reassignment to a vacant position. Under the FMLA, transfer or reassignment is only permitted in limited circumstances. Megan would need to have foreseeable FMLA leave based on planned medical treatment related to her serious health condition. In this instance, her employer may require a temporary transfer for the duration of FMLA leave to an available alternative position for which Megan is qualified and better suits her requested reduced hours.¹¹ This transfer may include altering the functions of an existing job to better accommodate Megan’s need for intermittent leave or a reduced schedule.¹²

If there is no planned medical treatment, Megan cannot be required to transfer but she can still agree to do so. This conversation is important as employers are prohibited from using a transfer to discourage employees from taking FMLA leave¹³ and cannot eliminate essential functions to avoid the need for FMLA leave.¹⁴

Under the ADA, reassignment to a vacant position is typically the accommodation of last resort, but it is acceptable if an employee agrees and if the employee is qualified for the new position. That means employees need to have the required skills, experience, education, and so on for the position and can perform the essential functions of the position with or without a reasonable accommodation. Employees do not need to be the best qualified person for that position under the ADA.¹⁵

Workers’ compensation laws also do not prohibit a transfer or reassignment but this may affect benefits. All employees must be treated consistently, and the position cannot be offered with an intent to discriminate.

Employer Communication

Considering all of these laws, Megan can voluntarily agree to RTW earlier than the 12 weeks requested or even SAW rather than taking leave and find a mutually agreeable arrangement. Regardless of the arrangement reached, it is important to tell Megan that she has the right to take up to 12 weeks of FMLA and any other state paid or unpaid leave. She should understand what this may mean in terms of benefits paid by her workers’ compensation carrier (if she declines a light-duty position).

Employers must communicate all options carefully and document the conversations. They do not want this type of message to come across as coercive or involuntary. In these conversations, employers should confirm the following with employees:

• They desire ways to SAW or RTW early.
• They understand the option to SAW or RTW early is theirs to make.
• They have the right, under the FMLA (and other applicable state laws), to use the full 12 weeks as continuous leave or intermittent leave, subject to medical support from healthcare providers.
• They understand an early RTW may affect workers’ compensation benefits.

In addition to confirming these facts, employers must confirm that employees like Megan are medically able to SAW or RTW earlier than the 12 weeks initially requested. Employers may also request medical documentation confirming employees can RTW early and that workplace accommodations will enable employees to perform the essential functions of their jobs.