Return to Work Scenarios and Legal Considerations for Employers
Explore a case study involving an employee's return to work after an injury, with legal insights on workers' compensation, accommodation requirements, performance issues, and discrimination concerns. Understand the relevant laws, employer responsibilities, and best practices for managing such situations effectively.
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Presentation Transcript
Managing Employee Managing Employee Return to Work Return to Work Scenarios Scenarios Karl R. Ulrich, Esq. September 26, 2023 Sebaly Shillito + Dyer, A Legal Professional Association 4262841
Our Goals Today Return to work following absence Employer options/some best practices Workers Compensation/ADA/FMLA Light duty/transitional duty Accommodating impairments/restrictions Handling poor work performance/ discipline Sebaly Shillito + Dyer, A Legal Professional Association 2
Case Study John Doe works in shipping and receiving for manufacturer of auto parts. His job requires mobility, ability to regularly lift 25 lbs., good organizational and record keeping skills and regular and predictable attendance. He works on a team with three others. John injures his back at work. He is out for six weeks, has had surgery and physical therapy and is receiving pain meds and other ongoing treatment. He has now been cleared to return with lifting restrictions. He has been diagnosed with degenerative disc disease. His pre-accident, past work performance has been spotty, and he has had history of insubordination. The Company had been considering terminating him when he had his accident. Sebaly Shillito + Dyer, A Legal Professional Association 3
Questions to Consider What Laws Apply? Must employer bring him back in same role? How much must employer do to accommodate restrictions? How to handle ongoing job performance issues? What about discrimination/retaliation? Sebaly Shillito + Dyer, A Legal Professional Association 4
Legal Overview Workers compensation considerations Light duty in lieu of TTD. -Ee must accept if: (1) Job must be suitable to capabilities (2) Job must be in reasonable proximity of residence (3) Good faith offer (meaning, not menial or busy work) Wage loss (1) RTW in other than former position or unable to find work (2) Experience reduction in earnings (3) Reduction is a direct result of restrictions caused by allowed conditions Salary Continuation in lieu of TTD (C-55) (1) Optional for Parties (2) If rejected by Employee, TTD may apply (3) May be ended any time Sebaly Shillito + Dyer, A Legal Professional Association 5
Legal Overview (contd.) Workers Compensation Retaliation ORC 4123.90 May not discharge demote, reassign or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers compensation act , Sebaly Shillito + Dyer, A Legal Professional Association 6
Legal Overview (ADA) Disability is a physical or mental impairment which substantially limited a major life activity. No express time duration requirement Need not be permanent or chronic Don t consider mitigating measures Reasonable Accommodation means any change to job which permits the individual to perform the essential job functions. Must be reasonable and not an undue hardship or pose a direct threat to health or safety. Sebaly Shillito + Dyer, A Legal Professional Association 7
Legal Overview (ADA)(contd.) Essential function means fundamental to job (i.e., the reason the job exists) Interactive Process required Undue Hardship considers: Nature and net cost Size and financial capabilities of employer Impact on operations Employee morale/reaction NOT Undue Hardship Sebaly Shillito + Dyer, A Legal Professional Association 8
Legal Overview (ADA)(contd.) Common ADA Accommodations: Accessibility Job Restructuring Essential Functions need not be changed Light or Transitional Duty not required by ADA Modified Work Schedules Equipment/Services Reassignment (Last Resort) Need not create a job, must be open and available job which ee is qualified to perform No bumping/need not alter seniority system (unless exceptions made for other reasons) Sebaly Shillito + Dyer, A Legal Professional Association 9
Legal Overview (ADA) (contd) Additional Leave May need to exceed FMLA, policy allotment No bright line minimum/maximum Indefinite leave not required Repeated extensions = indefinite Performance, productivity, quality expectations need not be modified Sebaly Shillito + Dyer, A Legal Professional Association 10
Legal Overview (FMLA) (contd.) Applies to large employers (50+ -ees) 12 weeks unpaid leave in defined 12-month period Leave covers period of incapacity (inability to work) due to a serious health condition Intermittent leave Management of intermittent leave Sebaly Shillito + Dyer, A Legal Professional Association 11
Some Best Practices/Suggestions Utilize medical professionals Document expectations/essential job functions Ask how may we help you? , NOT Do you need an accommodation? Avoid retaliation/discrimination Document, document, document Sebaly Shillito + Dyer, A Legal Professional Association 12
Thank you for your attention! Karl Ulrich, Esq. Sebaly Shillito + Dyer 9100 W Chester Towne Centre Drive Suite 210 West Chester, Ohio 45069 937-222-2052 kulrich@ssdlaw.com www.ssdlaw.com Sebaly Shillito + Dyer, A Legal Professional Association 4330788
