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HR Magazine: Rate of Return

Allen Smith  10/1/2007

HR Magazine: October 2007Vol. 52, No. 10

When an employee has survived a trauma, the injured worker and manager both may be eager for the employee to return to work—sometimes too eager.

Just one event can dramatically alter the course of someone’s life.

It may start as a spin around the block or a stroll out to the front yard to toss a football. But after an accident or sudden trauma such as a heart attack, the day may end in a rush to the emergency room.

Some employees may show incredible resilience after a trauma, ready in an amazingly short period to resume their work. But not everyone can or should be expected to bounce right back to the original or an equivalent position after a major accident or operation.

If it is too soon, an employee may not have a fair shot at succeeding in the original position and the employer may be at wits’ end trying to find a reasonable accommodation under the Americans with Disabilities Act (ADA). If it is not soon enough, the employer’s operations may be unnecessarily disrupted, opportunities may be lost to lower workers’ compensation benefits through an offer of light-duty work, and the employee’s desire to return to work may be diminished.

HR plays an essential role in the timing of the return, according to Connie Bertram, an attorney with Winston & Strawn LLP in Washington, D.C.

The temptation to give the green light too early may be strong when both an injured employee and manager press for an immediate return to work. If HR does not steer them to a more gradual re-entry, the employer, injured employee and manager may not reach the intended destination.

They instead may find themselves on a collision course with the Family and Medical Leave Act (FMLA), ADA and state law.

‘Co-workers Are Watching’

For a production assembly worker at Medtronic Microelectronics Center in Tempe, Ariz., a ride on a motorcycle with her husband ended in tragedy—her husband’s death and her own brain damage resulting in long-term disability, recalls Bob Enderle, director of organizational development, diversity and community relations at the center.

After the accident, the worker faced “two major life events—the loss of her spouse, and then the loss of mental and physical abilities. So she was really in a new world and trying to deal with that,” Enderle recalls.

The employee thought she could return to the same job, and Medtronic worked with a state agency to bring her back into the workplace, placing her in a similar position. Ultimately, she realized that she did not have the capability to function at the level needed for that position, “so we moved her to another job that wasn’t as demanding,” Enderle notes.

By transferring the Medtronic employee to her new job, which she successfully has held for three years, Enderle says the company was able to help her restore her self-worth.

Enderle credits a culture of “straight talk” as helping create an open and supportive environment on her return. Colleagues were “very helpful as she made that decision that she was no longer capable of performing that job the way she had previously, because she had the trust that those people were operating in her best interest.”

A compassionate response isn’t just in the employee’s interest, according to Robert Bettac, an attorney with Ogletree Deakins in San Antonio.

“Co-workers are watching,” Bettac notes. “They’re watching to see how management treats an individual who’s been a valuable contributor” after a life-changing event. “Now they’re coming back and trying to resume their life, including resuming what they contribute to the company. Co-workers want to see how you react. Do you care?”

Sensitivity to Workers and the Law

Bettac cautions employers not to prejudge what a returning employee will be able to do.

“When the department head calls HR to say, ‘We cannot put this individual back in his or her prior job because clearly they don’t have the attention span or they’re going to have difficulty because of a high-pressure position,’ that’s not enough. Assumptions are not enough, unless there is fairly clear and in most cases medical verification that the employee is not able to resume his or her prior duties,” Bettac says. “Management may have fears and, indeed, those fears may be realized, but you cannot prejudge how the return to work is going to evolve.”

Return to work usually isn’t a headlong journey, but more often unfolds in stages. Consider approaching the transition this way:

Talk with the employee well before the return. Early conversations with employees about return to work make sense under the ADA, according to Sharon Rennert, an attorney with the U.S. Equal Employment Opportunity Commission (EEOC).

And they make sense under the FMLA, Bertram says. There’s no advantage, however, in initially discussing all the alternatives aside from returning to the original position, she cautions. Out of empathy, a manager may be tempted to make promises that later cannot be kept.

For example, the manager might have the impulse to say something like, “I’m sorry about your situation. How horrible for you. Yes, you can come back to work half time and if it doesn’t work out, you absolutely can work from home.” Bertram cautions that this kind of statement can come back to haunt the employer if two or three weeks later it becomes clear the employee has no ability to do the job either half time or from home.

When someone has lost a limb or a family member has died, “it’s very natural and appropriate to have the tendency to bend over backward,” Bertram notes. But managers need to be trained to be sure HR is involved “to put things into place to make sure the employer is protected.”

Make medical certifications standard operating procedure. Employees recovering from trauma often ask to come back sooner than they should or try to do more than they should too soon, according to Bertram. That’s one reason she recommends that employers insist on medical certifications as a standard operating procedure.

“It’s very important to require certification in every situation that involves the ADA, the FMLA or pure sick leave, because it’s helpful for planning and gets the documentation flowing. It can be problematic selectively asking for the documentation on down the line” and can result in uncomfortable friction, she says. HR should handle the certification to comply with the ADA’s restrictions on medical inquiries and ensure the confidentiality of any medical information that is provided.

“Even in very sympathetic situations, there are delicate ways to handle” getting medical certification by working with family members, who Bertram says often cooperate with HR, even in extreme circumstances.

Of course, exceptions may have to be made. Suppose following an accident that a worker has slipped into a coma. If family members don’t cooperate, HR may have to “go with what it knows” through other reasonable attempts to confirm the person’s medical condition, such as calling the hospital to confirm the person is there.

Employees who are at the managerial level or higher often are particularly eager to return sooner than they should. Bertram recalls one executive who was working on his BlackBerry soon after a bypass heart operation.

HR has to contact these workers and clarify that the employer cannot let them work until they get released, Bertram says. This obviously has to be handled with sensitivity too, and HR may note that the employer doesn’t want the employee to injure himself or herself. Typically, employees who are eager to return to work from FMLA leave before they’re medically released “don’t want to hear” HR’s message in these circumstances, but she says they usually are at least “receptive.”

Talk with the employee first, then act. If someone who has returned to the original position isn’t working out, managers often are quick to let HR know. The manager may say, “Sue has been back a week, but nothing has come from her and she clearly is not capable of doing the work,” Bertram says. Employers often are scared to have a dialogue with the employee, but engaging in the interactive process to identify an accommodation can limit an employer’s potential liability under the ADA by showing good-faith efforts to comply.

Suppose a worker returns to the same or an equivalent position after exhausting his or her FMLA leave, but it isn’t working out and reasonable accommodations in the job haven’t solved the performance problems. The FMLA restoration obligation will be over, but ADA and state leave obligations may remain.

Under the ADA, the employer may have to consider a transfer to a vacant position as a last-resort accommodation. Legal obligations aside, the employer simply may want to keep the person on staff in a new role that is a better fit if reasonable accommodations for the original job don’t pan out.

First, though, should come a conversation with the employee, who already may know there are problems and may have ideas about possible solutions.

Bettac recommends “a counseling session or sessions to discuss with the employee the problems that management observes. Give the employee the opportunity to respond and some reasonable opportunity to conform the conduct to management’s expectations, as opposed to walking in one day and saying, ‘You’re failing in this job and in order to allow you to keep your employment, we’re going to have to insist that you move over to this other position.’ That’s generally ill-advised.”

Try, when it makes sense, a gradual return. If the employee is covered by the FMLA or state laws that provide more protection, the employee has the right to job-protected leave and may take time off on a reduced work schedule or intermittent basis, notes Joan Gale, an attorney with Seyfarth Shaw in Chicago. “So, an employee returning from a serious accident or medical procedure may need to ramp back up to full speed by working less than full time for a period of time. The key point for the employer is that this is legally required under the FMLA if the physician certifies it.”

Suppose a worker is out for eight weeks and FMLA leave has not been exhausted. The worker then may come back to work half time using intermittent FMLA leave and possibly ADA leave before returning to work full time.

If the person doesn’t have the physical ability to perform the original job, “the FMLA falls out” of the picture and the employer then should consider other legal requirements, such as under the ADA. Often employers go beyond what the ADA requires even if someone doesn’t technically have an ADA disability, and typically coordinate with the person’s disability coverage, Bertram notes.

But straying from normal policy out of sympathy for the worker may hurt the employee, she cautions. “A knee-jerk reaction is to continue to pay the employee” out of empathy for the worker’s plight, even though the person might benefit more from seeking and receiving insurance benefits, she says.

Sometimes it may make sense to deviate and give additional paid leave in the event of a serious accident, Bertram acknowledges. But this should be handled very carefully not to open up the employer to a claim of discrimination by a “scoundrel employee” whose situation isn’t as sympathetic.

Even if the worker returns full time after leave, Pavneet Uppal, an Ogletree Deakins attorney in Phoenix, observes that “the employer needs to understand that it will take the employee some time to again become acclimated to the job. It’s almost as if you’re hiring a new employee in some instances. When you hire a new employee, the employer and co-workers intrinsically understand that there’s going to be a ramp-up period.”

Consider individual training for managers. Because of the complexity of legal and HR issues, Bertram recommends individual training of managers when traumatized employees re-enter the workforce. She says the individual training should touch on:

  • The legal rights of the employee and the employer’s commitment to treating its people with respect.
  • Warning signs that should trigger conversations with HR.
  • Communication that managers should have with HR—such as if the situation is not working out to let HR know and explain why, or if the manager wants to let the person do more than the employer already approved.
  • Communication managers should avoid—such as discussing the medical condition with the employee. Train managers to leave those discussions to HR.

Go the Extra Mile

For the employee returning to work, success may end up looking very different from what that person once envisioned. And there’s no guarantee that the return will work out in either the original position or any slot.

But the employer should do all that it can to set the stage for a successful re-entry. Mary Hall, chief operating officer with Take Charge America Inc., a Phoenix-based consumer credit counseling organization, reflects that “whenever anyone comes to work at our organization, we invest into their training.” She adds that, once “they have become a part of the workforce, we would like to retain them however we can, and at this point we have been fairly successful in working with our FMLA employees.”

Besides, Uppal notes, when “we’re talking about life-changing events such as the death of a spouse or a horrific accident, there will be an expectation of a jury that the employer should go the extra mile to accommodate that individual, even though that’s not the law. That’s human nature.”

Allen Smith, J.D., is the Society for Human Resource Management’s manager of workplace law content.

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