Overview: When an employee sustains a work-related injury or cannot work because of a long-term disability-related absence (such as cancer), it is in the employer's best interest to work with the employee to facilitate the earliest possible return to work. The longer an employee stays out of work, the higher the potential workers' compensation claim, the less likely the employee will return to his or her pre-injury (or illness) job and the lower the overall business productivity. To assist injured or ill employees in getting back to work, many employers institute return-to-work programs. These programs are designed to return employees to work in a full or restricted capacity, such as through light/modified duty or telecommuting, as soon as possible.
Sometimes an employee will be considered unable to work under a state workers' compensation law but the employee wants to return to work utilizing a reasonable accommodation under the Americans with Disabilities Act (ADA). When this happens, an employee is representing that he or she is unable to work or is totally disabled (in order to get workers' compensation benefits) while at the same time representing that he or she is a qualified individual with a disability who is able to work with or without a reasonable accommodation. Employers should think outside of the box and work with employees to pinpoint what they need to resume working productively while staying within the confines of federal and state law.
When considering return-to-work programs, an employer should stay away from implementing blanket policies which indicate that no light duty is permitted or offered or that light duty is only offered for workplace injuries. Such policies may violate an employer's duty under the ADA to engage in an interactive dialogue with an employee about whether light duty would be a reasonable accommodation under the particular facts and circumstances. In addition, employers need to keep in mind that sometimes light duty or another workplace modification will not always be reasonable under the ADA.
Trends: Employers should be careful about having policies that require that employees be 100% fit to return to work. These 100% healed policies can be seen as a violation of the ADA's protections and may also have an unequal (negative) impact on qualified individuals with a disability.
Melissa S. Burdorf, J.D., Legal Editor
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