Dear Atty., My Employee Lawyered Up. Now What?
We have a current employee who is out on workers’ compensation. He hired an attorney prior to being released to return to work. He has been released to return to work with a 10‑pound lifting restriction. We do have work available within his restriction, but he has resisted all of our efforts to return him to work. Our human resources department would like to contact him directly, but we fear that we cannot do that because he has hired an attorney.
Afraid of a Lawyered Up Employee
You certainly are free to contact your employee directly, despite the fact that he has an attorney. Even in a lawsuit in which both parties are represented by attorneys, parties are free to bypass the attorneys and talk to each other. On the other hand, the ethical rules that govern attorneys would prohibit your company’s attorney from contacting the employee directly once your attorney is aware that the employee has hired an attorney.
The tougher question is, once you contact the employee, what are you going to say? You need to be careful because the situation you presented is one that involves the confusing overlap between three areas of law: workers compensation; the Americans with Disabilities Act; and the Family and Medical Leave Act.
Let’s talk about the workers compensation issue first.
The Law: Under the Workers Compensation Act, an employer has a duty to “re‑hire” an employee who has been out on a workers compensation leave where the employer has work available within the employee’s restrictions. This duty, however, ceases if the employee refuses an offer of rehire to work within his restrictions.
Based on the information you provided, your company may be in the position to not rehire the employee due to his apparent refusal to return to work in a job that is within his restrictions.
Next, let’s talk about your ADA situation.
The Law: A workers compensation injury could rise to the level of a “disability” covered by the ADA. Under the ADA, an employer has a duty to accommodate the employee’s disability. In order to determine whether a reasonable accommodation is available, the ADA envisions that the employer and employee will engage in an “interactive process” in order to arrive at a possible, reasonable accommodation. The general rule, however, is that if the employee frustrates the interactive process, the duty to accommodate ceases.
Based on what you have told me, you may be in a situation in which your employee is frustrating the interactive process by not working with you to determine if there is an accommodation that would allow him to return to work.
Lastly, let’s talk about the FMLA. If your company is covered by the FMLA (or its Wisconsin counterpart), it is possible that your employee’s workers compensation injury could rise to the level of a “serious health condition” that is covered by the FMLA. In your example, you did not mention whether your company has offered FMLA to the employee.
With all of that said, here is what I would do if I were you. I would send your employee a letter advising him of his rights under the FMLA and enclosing FMLA paperwork. In that same letter I would explain that if he elects not to avail himself of a leave under the FMLA, he needs to contact you immediately to discuss a possible return to work and any accommodations that he may need. I also would reiterate the efforts that you have made to return him to work and his lack of cooperation. Lastly, I would give him a deadline to respond, stating that his failure to meet that deadline will be interpreted by the company as indication that he is not interested in returning to work. My hunch is that this letter will prompt your employee to act, one way or the other.
I don’t envy you. Return to work situations such as this one are among the most challenging. You truly are in the “Bermuda Triangle” of workers compensation, the ADA and the FMLA. But, do not lose hope. The suggestions that I have provided should provide you with a way to navigate to safety.
The “Dear Atty.” column is aimed at answering employers’ legal questions that surround issues in human resources. Attorney Pete Albrecht of Albrecht Backer Labor & Employment Law, S.C. welcomes you to for future editions of “Dear Atty.”
If you would like additional information about this topic, please contact Pete Albrecht. He is the president and a shareholder at Albrecht Backer Labor and Employment Law. Pete has represented employers for over 28 years and his law office is located in Madison, Wisconsin.