Return From Disability

Q: My receptionist was involved in a serious accident which resulted in a closed head injury. She has been off work for six weeks and is now telling me she is ready to return. I have held the job open all this time, however, she has not been paid while on disability and I think she is rushing her return for financial reasons. I am concerned about her cognitive ability to do the job. I don’t know that much about closed head injuries, but what I do know, causes me concerns. My questions are: Do I have to bring her back? Can I find out what her cognitive ability is before I bring her back? And if I bring her back, and she cannot do the job, what do I do with her?

A: This is a very complicated issue and there are no clear answers here. Let’s begin with your obligation to hold the job. Only if you are an employer of 50 or more employees within 75 miles of each other are you mandated to hold her job for the 12 weeks under the compliance of the Family Medical Leave Act. I am assuming that you have less than 50 employees and do not have to comply, so one may think the simple answer to your first question is that you do not have hold her job nor are you obligated to bring back, yet life is not that simple.

If you have an established leave policy you need to consider the terms of your policy and try to follow it as best you can. If you do not have a leave policy, you need to look at precedent, how have you handled employees who have had any type of leave such as pregnancy. Although you may not be completely bound by precedent, it must be considered when handling these types of situations. This is how you could determine how long you are going to hold her job.

She may say to you that she is ready to return, but you should not allow her to return until you have received a full and complete release from all treating physicians, for her to perform the essential functions of the job. This should include a release from the treating physician who can attest her cognitive abilities to do the job. You do NOT need to have her health and medical information. All we want to know if she can or cannot perform the essential functions without restrictions. You must control this process by providing the treating physician with a job description with the essential functions and the physical and environmental expectations of the job. If you do not tell them, you are dependent upon the employee telling them, and what the employee tells them may not necessarily be accurate or in the best interest of the practice.

If you receive a full and complete return to work without restrictions, bring her back. If she fails to perform up to your standards, you need to address it from a coaching and potentially documented disciplinary perspective. Since she has been given a release, including a statement that attests to her cognitive abilities, you should expect her to perform at her previous level. If she provides a return to work with accommodations, you will need to consider this accommodation, since she may be considered a disabled individual and will have the right to require an accommodation.

If you do not receive a release, then you should determine how long you will hold her job open by following either your leave policy or considering past precedent. You are not expected to hold her job and retain her employment forever, eventually, if she is unable to return, you may terminate her employment.

Be careful, there are many issues and potential liabilities that can come from mishandling this type of situation. We have to consider the Americans with Disabilities Act, the Michigan Persons with Disabilities Civil Rights Act and Family Medical Leave if you are large enough. You may have issues of discrimination. Finally, the way you treat this employee sends messages, both good and bad, to your entire staff. I strongly suggest seeking professional advice prior to making any final decision on how you will handle this situation.

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