What’s Your Return to Work Policy?

Kegler Brown Labor + Employee Relations Newsletter

Many employers have a written policy that says words to the effect that an employee returning from an extended leave or absence has to be cleared to return “with no restrictions,” or they must be able to perform “all of the duties of the job.” If you’re one of these employers, you may have trouble with the EEOC. The reason is that a disabled employee only has to be able to perform the essential functions of the job - not necessarily “all” of the duties, and not necessarily “100%” or without any restrictions. And, as to essential functions, they have to be able to perform them with reasonable accommodations.

Sears, Roebuck and Co. recently faced this issue with the EEOC. Sears’ policy was to terminate employees who were on leave for workers’ compensation, work-related injuries after they had been absent for one year. The EEOC claimed that this policy illegally discriminated against employees that were disabled because (a) the policy didn’t allow for any extensions of the one-year period, and (b) the policy didn’t allow for an employee’s return to work with an accommodation to their disability that would permit them to perform their job. Sears denied any wrongdoing. But they paid $6.2 million to settle the case.

Sears agreed to implement a new procedure, which is a good blueprint for employers to follow:

  • The company will send a letter to the employee on leave, 45 days before the leave expires, asking about return to work and informing employees of their right to request a reasonable accommodation if they have a disability; and
  • The company will send a “final notice” letter, at least 10 days before termination, to employees who do not respond to the first letter; and
  • All termination decisions are to be made by a centralized office staff that reviews leave terminations (i.e., not supervisors).

With the new amendments to the Disability Law, whereby virtually every employee may qualify as being “disabled,” your leave and return to work policies will come under much greater scrutiny.