From the Hotline: Inability to Accommodate Work Restrictions

Question: We have an employee who went on disability with a workers’ compensation claim and came back to work on restricted duty. However, we cannot accommodate the restrictions. Can we terminate his employment because we cannot accommodate the restrictions?

Answer: If you have an employee who has been out on workers’ compensation and has received clearance to return to work on restricted duty, you have the obligation to make every effort to provide the employee with a reasonable accommodation as set forth by the Americans with Disabilities Act (ADA). If there is no way to reasonably accommodate the employee’s restricted duty based on the job functions in your company, you may need to consider alternatives such as providing the employee with other job duties within the organization, or even allowing him additional time off until he can return to his regular duties.

Under the ADA, employers may not refuse to allow a disabled employee to return to work because the employee is not fully recovered as long as he can perform essential job functions within the company. Although the employer has the right to set job prerequisites concerning education, skills, and other job-related requirements, employees are presumed to have already met these. Therefore, the focus should be on whether an injured employee can perform the job’s essential functions, with or without accommodations.

Return-to-work programs that incorporate modified duty can help employers avoid ADA or workers’ compensation lawsuits. Document all attempts to reasonably accommodate persons with disabilities and apply the return-to-work program equally to all employees.

Until the employer has explored and exhausted all accommodations as outlined in the ADA and under any state workers’ compensation statutes, there should not be any adverse action taken against the employee. We recommend consulting with legal counsel should you choose to move forward with employment termination.

See the following resources for further information regarding reasonable accommodation and the requirements under the ADA: