BFV Perspectives, Sports Fans Guide 2 HR, | Jun 25, 2013

Derrick Rose’s Absence from the NBA Playoffs Illustrates Return-to-Work Challenges for Employers

There was certainly a lot of drama during the 2013 NBA playoffs and finals, such as the hoopla over LeBron James’s legacy and the future of the Big Three in Miami.  Chicago Bulls star Derrick Rose’s absence from the playoffs, however, created its own dramatic storyline and controversy.

Rose tore the ACL in his left knee and had surgery in May 2012.  During the last several months of the regular season and throughout the playoffs, controversy surrounded his physical condition and ability to return to action.  Many players and commentators believed that Rose should have played, while others defended his reluctance to return to the court until he felt comfortable to play.

Return-To-Work Challenges

Rose’s situation and the frustration the Bulls must have endured is not unique to the NBA.  Studies show that, regardless of employer size, managing return-to-work issues is difficult, especially in light of the legal obligations under various federal and state laws, such as the Family and Medical Leave Act (“FMLA”), The Americans with Disabilities Act(“ADA”)/ADA Amendments Act(“ADAAA”), and workers compensation statutes.

Complying with the various laws can be challenging. The protections under the laws vary in different and material ways.   Just because an employee exhausts leave under the FMLA, for example, does not mean that the employer does not have an obligation to provide additional unpaid leave as a reasonable accommodation under the ADA/ADAAA.

With some planning, however, employers can implement return-to-work (“RTW”) programs that will help employees get back to work and increase their productivity.  As a result, some of the legal challenges can be minimized.  There are also several financial incentives to establishing a RTW program including but not limited to: reduction in costs of absenteeism; decrease in replacements costs (recruitment, training, etc.); detection of fraudulent cases at earlier stages; increase in safety policies and practices; and improved employee morale.

I recently had the pleasure of participating on a panel at the Disability Management Employer Coalition of GA/Greater Atlanta Chapter.  The topic of the meeting was titled New RTW Strategies: Culture, Communication, Compliance, Coordination and Creativity.  The meeting was focused on helping employers bring employees back to work.  The panelists shared many goals and benefits of a sound RTW program, including:

  • Promoting awareness of the ability of employees with temporary or permanent impairments to perform productive work;
  • Creating a uniform and compliant process to return employees to economic, social and vocational status;
  • Providing a safe and timely transition to optimal productivity;
  • Expediting an employee’s ability to begin/resume regular job duties; and
  • Shortening workplace disruption and stress to other employees.

The ADA prohibits discrimination against an individual with a mental or physical impairment. Under the ADA, discrimination can include “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship. . . .”

In light of this provision, one of the most important aspects of a RTW program is to define the roles and responsibilities for all phases of the accommodation process in compliance with the ADA.  More specifically, to comply with the ADA, a RTW program should identify who will be responsible for notification, information gathering, exploring options and selecting the appropriate job accommodation, implementation and monitoring.

While the injuries in sports garner more media attention, the issues presented in those settings directly mirror common issues all employers must face.  It is important to be mindful of the federal and state laws so that your business can be at full strength, even in the midst of an injury.

BFV Perspectives, Sports Fans Guide 2 HR, | Jun 25, 2013
Kenneth N. Winkler
Kenneth N. Winkler

Kenneth Winklera shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.