It’s always been difficult for organizations to handle compliance issues with the Americans With Disabilities Act (ADA) and the Family Medical Leave Act (FMLA).

While managing the process of granting time off is straightforward, bringing employees back after a leave can be a compliance headache: Organizations may routinely violate ADA and FMLA regulations and not even be aware of it.

The parameters of workplace absences

FMLA provides protected time away from work, whether for occupational or non-occupational reasons. It must be given when employees meet the criteria; the employer must determine what a return to work will resemble.

If a physician has approved the worker to return to work with occupational restrictions, the ADA mandates accommodations for the worker be “reasonable.” Employers need to engage in dialog with an employee to develop options for the return that the employer deems reasonable.

Employees returning to work after time off will raise difficult questions for their employers:

  • Is a “fitness for duty” form required, and how is fitness for duty defined?
  • Are occupational and non-occupational injuries treated differently?
  • What happens if an employee is no longer regarded as “disabled” (as defined by workers’ compensation or short-term disability) but can’t fully return? What happens if the employer can’t provide an accommodation?
  • In a hybrid work environment, are employers obligated to make accommodations for two different workplaces? If so, how?

Tackling big questions

Return-to-work policies must be able to address all these issues. Here are three steps to start:

1. Establish essential job functions. Job descriptions can form a basis of essential job functions for any given role. These could be as straightforward as attending meetings virtually or in person, or more complicated (mandated travel, physical tasks or jobs that necessitate being in an office). Ideally, they should be much the same for a business setting as a work-from-home office, but this is not always the case.

2. Determine rules for the workspace. Employers may require a dedicated space for a home office. They need to establish rules for those working out of their homes in terms of their workspace and what accommodations are needed specifically for that space. The employer must also delineate an employee’s responsibilities for setting up a home office. The advice of legal counsel is recommended to help guide employers on specific issues, such as the employer’s obligation to fund the home office and what can be required of the worker, such as internet and other services.

3. Update return-to-work processes. Under the ADA, the process to determine workplace accommodations is unique to each employee. But the employer must establish a broad framework to reflect different standards for work-from-home or hybrid employees and those who work exclusively onsite. It’s important to ensure the appropriate resources are available to assess both and to identify potential accommodations for a hybrid employee.

Contact HUB International’s People & Technology experts on the best ways to meet ADA and FMLA compliance in a new world of hybrid work.