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What right do disabled employees have to re-employment, once they get better? That’s a question that Aetna employee Debora Lisee is asking in litigation before the Connecticut Commission of Human Rights and Opportunities and in a separate breach of contract case in Hartford Superior Court. Lissee’s lawyer, Robert J.Williams Jr. of Suffield, Conn.’s Williams & Vassaro, said a key issue here is “what duty a company owes when an individual has been out for an extended disability, when it has been corrected and they present themselves at the employer’s door. What duty does the employer have under the Americans with Disabilities Act?” He added that a 9th U.S. Circuit Court of Appeals case “says a company has some duty to do something. That’s never been addressed in Connecticut or the 2nd Circuit.” Lisee’s litigation also is probing the significance of Aetna’s written “Managed Disability and Return to Work” program. That program, not required by law, is simply an “enlightened” policy the company has adopted “to assist injured/ill employees throughout the disability leave process and return them to work as soon as medically appropriate.” The litigation may build upon the 1987 milestone of Finley v. Aetna, in which the Connecticut Supreme Court recognized that a company’s employee manual could be given the weight of an employment contract. INTEREST REVIVED Lisee’s CHRO case almost died quickly. After administrative hearings, Assistant CHRO Counsel M. James Malcom Jr. dismissed her complaint. On appeal to Superior Court Judge Henry Cohn, the CHRO had a change of heart. Like Cohn, the human rights organization wanted to find out more details about Aetna’s return to work program, and recognized that Malcom’s hearing left many questions unanswered. On March 27, 2000, Cohn granted CHRO’s motion to remand the matter to the agency for further scrutiny — and Aetna promptly appealed. It hired one of the state’s top employment lawyers at Connecticut’s largest firm to help put a lid on a case squirming with new legal issues. Albert Zakarian, the most senior employment lawyer at Hartford, Conn.-based Day, Berry & Howard, wanted to be able to argue that CHRO’s original decision dismissing Lisee’s complaint was properly decided and should end the matter. Instead, CHRO battled Aetna’s very right to appeal, on the narrow procedural ground that Cohn’s remand was not an appealable final judgment. In a Nov. 6 ruling by a unanimous supreme court panel, the high court ruled against Aetna, opening the door for a close look at its return to work program. The decision, written by Richard N. Palmer, ruled that “only a remand after a determination on the merits of the appeal is a final judgment that can be appealed.” ATTITUDE SHIFT? It is an unfortunate byproduct of today’s tense times, but for most employment professionals, the idea of “ex-employee returning to workplace” is associated first with “preventing workplace violence.” According to the facts alleged, Aetna’s return-to-work program didn’t produce much job-finding activity from Lisee or Aetna. Both sides blame the other. According to Williams, she called her supervisor, a human relations person and the disability program coordinator. None returned her phone calls. Two weeks into this four-week period, she got the pink slip from Aetna. According to Zakarian, Lisee’s efforts were minimal. He said her call to her ex-boss was informational, and that she hadn’t expected a call back, and that she never followed up on a second call. “I find all that puzzling. It hardly looks like she was pursuing her own self-interest, which would be to find a job within Aetna. “Our position was that she sat back and was lax,” he said. Zakarian noted that no company is required to have a return-to-work program. Aetna, as “an enlightened company,” sought to do more than the minimum required by law.

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