From the Hotline: Return to Work After Workers’ Compensation Leave

Question: We received notification from our workers’ compensation claims adjuster that our employee who is out on a workers’ compensation leave has been released to return to work today. This employee has not been in contact with the company since her leave, did not notify us that she was released to return to work, and did not report to work today. Can we apply the same disciplinary actions to her as we do for other employees in a no call/no show situation, or does she have special protection because she is under a workers’ compensation claim?

Answer: Although an employer must make every attempt to bring the employee back to work when released to return to work following a job-related injury or illness, the employer maintains the right to apply disciplinary action to employees who do not follow company policy. Prior to taking any negative disciplinary action, however, you should review the company’s communications with this employee at the beginning of the leave to ensure that she understood that she was required to keep you informed regarding her status. She may have thought that the workers’ compensation carrier would be communicating with you, and she may have been waiting to hear from you regarding her return to work status.

If that is not the case and you have attempted to contact her via phone and email throughout the leave and have heard nothing back from her, then check her contact information and send a certified letter to the employee’s home address notifying her that you have been notified of her release to return to work and that she will need to either return to work or contact you with a valid medical reason for extending her leave in order to avoid disciplinary action. Send this letter via certified mail with signature required so that you have confirmation that the correspondence has been received. The letter should clarify your company’s policy with regard to contacting her supervisor when she will not be reporting to work and the potential repercussions for not following the policy. Continue to work with the claims adjustor and the employee to bring the employee back to work. If the company has reached the point of considering terminating the employment relationship, consult with legal counsel to mitigate the legal risks under the Americans with Disabilities Act and the state workers’ compensation laws of terminating an employee while on medical leave.