RETURN TO WORK: What You Really Need to Know - There s A Lot. Phillip Klein and Stephen Nakata. Laughlin, Falbo, Levy & Moresi LLP

Transcription

1 RETURN TO WORK: What You Really Need to Know - There s A Lot Phillip Klein and Stephen Nakata Laughlin, Falbo, Levy & Moresi LLP

2 In the beginning Personnel handbook vs. Collective Bargaining Agreement Medical release vs. Fitness for Duty Exam Personnel issue vs. Labor issue Process for requesting medical leave Process for returning from medical leave Time limitations Return to work coordinator

3 Why Were You Out? Work related injury Labor Code Non-occupational Injury or Illness California Family Rights Act (CFRA) Family and Medical Leave Act (FMLA) Fair Employment & Housing Act (FEHA) American s with Disability Act (ADA)

4 Work Related Injury - Basics Temporary vs. Permanent Temporary means short, less than six months Permanent means at least 12 months Doctor s return to work slip Work restrictions Can t do Maybe can do, but not as much Carefully consider what doctor says

5 Work Related Injury - Temporary Why have a temporary return to work program? Keeps the employee engaged Keeps the employee on a schedule The employee feels needed The employee feels productive Not a vacation Keeps the employee from watching television

6 Work Related Injury - Temporary The employee could only count paperclips Look at your department, group, office, facility Designate specific positions Have a contact person Consider employees skill and experience What can the employee bring to the table? Consider duration of temporary return to work Is the position something that can be easily learned?

7 Non-Occupational Injury Temp. Not required Working at 75% Consider the work restrictions Sit and stand at will Keep consistent with temporary return to work program

8 I m Ready to Go Back! Timing Still an employee? Permanent Work Restrictions Let s give it a try What if there isn t a final report? What if there are contradictory opinions?

9 I m Ready to Go Back! Work related injury Regular, alternate or modified Must be for at least 12 months Must be at least 85% of prior earnings Must be in writing on specified form Employer may reduce w/c liability permanent disability and voucher

10 I m Ready to Go Back! Non-Occupational Injury (Applies to work injuries also) Fitness for duty exam FEHA and ADA Biggest difference FEHA does not consider mitigating measures Disability limits major life activity Able to perform the Essential Functions of the Position Reasonable Accommodations = It depends

11 I m Ready to Go Back! Non-Occupational Injury (Applies to work injuries also) Interactive Process = Accommodation meeting Need to consider employee s education, work experience and skills Reasonable Accommodations = It depends Job restructuring, modified schedule, equipment modification Do NOT need to create new job

12 I m Ready to Go Back! Defenses to Reasonable Accommodations Undue hardship for employer Direct threat to health or safety

13 After the employee has returned Monitor for a period of time Is it working out? Additional reasonable accommodations Another accommodation meeting? For work injury position must be guaranteed for 12 months If position eliminated before 12 months, liability for permanent disability increases and entitled to voucher

14 Tips for the Weary The 3 D s of Personnel Action Document, document, document Does the employee meet the minimum requirements? CFRA/FMLA requires one year of employment or 1250 hours worked Serious health condition vs. disability Temporary v. Permanent

15 More Tips Keep the loop informed Human resources, labor relations, risk management, workers comp, manager/supervisor, employee Keep medical information confidential Coordination is critical Left hand should know what the right is doing Don t assume that someone else will do it Follow up

16 One More Tip Ask for clarification Work restrictions Accommodations