Joan Gale Quoted in HR Magazine

The article "Rate of Return" in the October issue of HR Magazine reports on FMLA / ADA rules or guidelines on dealing with an employee returning to the workforce after a life-changing physical disability/event.  "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.  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. . . . 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.  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.' "

"Apply the Brakes," an addendum to the full article quotes Joan in more detail: " A speed limit on return to work sometimes is needed not only to give the returning employee a fair chance, but also to ensure compliance with a host of laws.  HR has the challenge of helping the worker's manager stay in step with the legal provisions - federal or state - that provide the employee with the most protections.  "This sometimes is easier said than done, given the complex web of laws that may apply to a traumatized employee - not only the Americans with Disabilities Act (ADA), Family and Medical Leave Act and state leave laws, but also the Uniformed Services Employment and Reemployment Rights Act, workers' compensation statutes and state laws prohibiting discrimination based on disability.  "An employee on leave for a work-related injury raises special issues," says Joan Gale, an attorney with Seyfarth Shaw in Chicago.  "In some states, an employer cannot terminate an employee who is unable to work due to a work-related injury, and most states recognize the tort of retalatory discharge."  "As for the ADA, Gale recommends that employers "keep in mind that the Equal Employment Opportunity Commission continues to take a hard line on 'hard and fast' leave cutoffs" and says the agency views a disability under the ADA expansively.  "So, my general advice is for the employer to be reasonable and fair-minded when it makes decisions on whether to continue to hold open a position."