Employers: Seek Expertise When Handling Leaves of Absence/Return-to-Work

Managing multiple leaves of absence and the return-to-work process may require navigating a maze of complementary and conflicting requirements. Yet it’s important to manage these decisions properly, as appropriate “risk prevention keeps profits in [employers’] pockets,” according to Patricia Eyres, a labor and employment law expert with Stuart Baron and Associates.

In fact, employers that fail to appropriately manage multiple leaves of absence and the RTW process when employees are injured or need time off can face significant financial penalties. That’s because disability discrimination claims lead all categories of charges in the California workplace, surpassing claims based on age, race and sexual discrimination, Eyres explained.

The Golden State especially has a higher percentage of disability discrimination claims than the rest of the country, with 36.4 percent of the total versus 23 percent nationally. The particularly harmful part of the equation, Eyres said, is that jury verdicts for disability discrimination are significantly higher than the median at $233,288 per claim, followed by $180,597 awarded on average for age discrimination claims, $177,000 for sex discrimination claims, and $105,000 for race discrimination claims.

Furthermore, jury awards don’t include “reasonable attorneys’ fees” to the employee who wins. These fees are assessed by the judge, and often exceed the jury award. This means that when defending against lawsuits, “even when you ‘win,’ you’ve drained resources for management time and defense costs,” she said.

The 20th anniversary of the signing of the American with Disabilities Act (ADA) is a crucial reminder for California employers to be aware of the wide array of legal risks if they:

• Don’t comply with the Family Medical Leave Act, California Family Rights Act, workers’ compensation regulations, California Fair Employment and Housing Act (FEHA) and ADA;
• Do not administer leave of absence documentation properly
• Cannot consistently address overlapping or conflicting standards
• Have not effectively educated their leaders to prevent discrimination and retaliation; and
• Will not keep eyes and ears open to all risks.

Whether an employee needs to take a leave of absence because of a medical condition, accident/injury, military service, to bond with a child, or some other reason, employers need to be aware of their legal responsibilities and put procedures in place to defend against potential claims.

Federal and state statutes sometimes conflict, Eyres said. For instance, some laws apply to organizations with more than 50 employees; others apply with as few as five employees. In California, for a pregnancy-related disability, an employee can take up to 16 weeks of leave under FEFA, and also take baby bonding time, which under CFRA is 12 weeks. Employers also may require employees to use sick time for leave, but it’s up to the employer to set that policy. And, employers have both a federal and state obligation to provide FMLA — a job-protected benefit — once there is a reasonable belief that leave is needed.

When employees have more than one applicable leave, such as an industrial accident, FMLA/CFRA and a union contract, leave administrators must determine whether they run concurrently or consecutively. Additionally, a dozen other short-term leaves are also job-protected and benefit-protected, with substantial penalties for ignoring the requirements or retaliating against eligible workers, Eyres said. So with the potential for claims, employers may feel like they are walking on a minefield when handling leave and the RTW process.

Given that managers may be held personally liable for, among other things, failing to provide FMLA or terminating someone for excessive absenteeism, it’s important that employers seek expert advice, as well as educate their managers on proper attitudes and assumptions to avoid legal landmines in the courtroom, Eyres said.

Some improper attitudes and assumptions supervisors often have include:

• An employee on modified duty is more likely to get hurt on the job.
• Disability laws don’t protect an employee if his own “negligence” caused him to get hurt on the job.
• An employee whose own behavior caused him to get sick (e.g. smoking, drinking, drug use, obesity or other chronic conditions) doesn’t deserve an accommodation
• An employee with a mental disability is always a safety risk and must be kept out of any safety-sensitive job.
• The company is too small to even consider job accommodations.
• We have no budget for accommodations.
• Accommodating people with disabilities is too disruptive to productivity.
• Employees with medical conditions increase insurance costs.
• We can’t provide modified duty if a union contract prohibits it.
• An employee terminated for poor performance after returning from a workers’ comp leave will always have a successful claim for retaliation.

Even inflammatory e-mails, such as rude comments about claimants or the claims process, or negative statements about a RTW decision or required accommodation such as an employee is “an accident waiting to happen,” can be harmful to a company. E-mails are discoverable if a claim winds up in court, Eyres explained.

While employers need policies to process requests for leave and RTW accommodations uniformly, employers that use a blanket policy to streamline their worker leave of absence policy also could find themselves in legal trouble, Eyres cautioned. That’s because both the U.S. Equal Employment Opportunity Commission and California courts have ruled that leave of absence and RTW policies should take into account each employee’s individual “disability.” In 2001, FEHA broadened the definition of “disability” beyond the federal law, imposing stricter responsibilities to consider reasonable accommodations, she explained. “FEHA requires a very specific ‘interactive process’ for communicating with an employee when considering a ‘reasonable accommodation and individualized needs. … Blanket policies are unlawful when they preclude an individualized decision.”

For instance, in Tabaie v. Stockton Unified School District, a school psychologist injured his back while moving a file cabinet and filed a workers’ compensation claim. He returned to work with lifting restrictions to no more than 10 to 15 pounds. The district did not modify his job duties, and had a policy that provided full pay and benefits for up to 60 working days while the employee stays on the job and recovers from a temporary disability. After 60 days, the policy said to continue working, the employee had to either provide a “complete medical release or apply to the HR department for a reasonable accommodation if the injury caused permanent disability.”

The employee was told he couldn’t work unless he obtained a doctor’s release allowing to work without restrictions, and he sued under FEHA. Eventually, the appeals court found that the school’s modified duty policy was “actually a 100 percent healed policy,” which is discriminatory under FEHA and the ADA. “These policies are invalid because it permits an employer to avoid the required individualized assessment of the employee’s ability to perform the essential functions of the job with or without accommodation,” the appeals court concluded.

The changing legal landscape regarding leave and RTW accommodations has put increasingly complex requirements on public and private sector employers. Nevertheless, employers must be able to coordinate leave compliance with their other compelling responsibility: enforcing a lawful return to work process under FEHA and the ADAA. Given the complex nature of leaves of absence and RTW, employers should acquaint themselves with the range of legal risks facing them and their critical roles in their organizations’ administration of mandated leaves and RTW processes. It also might be helpful to seek expert advice when trying to navigate the rule sand regulations, Eyres suggested.

“This area of risk prevention impacts your bottom line,” she said. “Wouldn’t you rather keep employees happy and money in your pocket?”

Eyres was a speaker at the eighth Annual Workers’ Compensation Policy Conference put on by the California Coalition on Workers’ Compensation.