You can’t refuse to allow an employee with a disability to return to work even if that individual isn’t fully recovered from a work-related injury, unless you can show that:

• The individual can’t perform the essential functions of the job with or without reasonable accommodation.
• The individual would pose a direct threat to self or others that could not be reasonably accommodated.

• Blanket policies that say an employee must be 100-percent healed before returning to work after an injury are unlawful; you must assess whether the employee can perform the essential job functions with or without reasonable accommodation. For more information on returning to work after disability leave, see Disability Leave.

Neither the ADA nor FEHA require you to create “light duty” positions unless the “heavy duty” tasks are marginal job functions that you can reallocate to coworkers as part of the reasonable accommodation process. However, a past practice of creating light-duty positions will result in your obligation to offer this type of accommodation to an injured employee with a disability.

Employers must initiate a good faith, interactive process to identify a reasonable accommodation for a disabled employee returning from a workers’ compensation leave of absence.1 See Interactive Process for Reasonable Accommodations for more information on the interactive process.

• Employers must remember to keep the workers’ compensation and reasonable accommodation processes separate and meet their obligations under each.

Medical reports received as part of the workers’ compensation process don’t alleviate an employer’s obligations under the ADA and FEHA. For example, if a medical examiner in a workers’ compensation matter releases an employee to return to work with no restrictions, the employer is still obligated to engage in a full interactive process with an employee who is disabled and seeking accommodation.

Workers’ compensation “ratings” and evaluations may be relevant to an employee’s ability to work, but don’t replace the disability accommodation process. Additionally, an employer’s communications with an employee on a workers’ compensation claim aren’t part of the interactive process.

When an employee disagrees with medical examination results in the workers’ compensation setting, an employer can’t rely exclusively on a medical evaluation to make accommodation decisions. The employer must engage in a full, interactive process with the employee.2 For more information on your duty to engage in the interactive reasonable accommodation process, see Reasonable Accommodation of Disabilities.

Also keep in mind that a California Supreme Court ruling — that an employee not allowed to return to work after being out on a workers’ compensation claim could file a disability discrimination claim under FEHA — opened the door to employees filing lawsuits alleging disability discrimination when they were previously limited to workers’ compensation lawsuits.3 See Employee Protection from Workers’ Compensation Discrimination.

1. 2 CCR sec. 11069(b)(3)