As a human resource professional, I have two recurring nightmares.

The first, which I won’t go into here, involves a discussion with an ex-boss about the need for training.

My second nightmare is as painful as the first. I dream I am working for a large newspaper as head of human resources and environmental health and safety. We’re a good company, and profitable, but to compete in today’s economy, we run a pretty tight ship. One morning, the vice president of production calls me.

“I just got a call from our night shift press manager about one of his pressmen. He’s been off work for nearly two months because of his back problems, but now his doctor says Mike can come back to work for a few hours every day if we redesign his workstation.” “Great,” I say. “We’ve missed Mike.”

“No, we haven’t,” he says. “Mike was always a pain in the neck, and no one has missed him a bit. We like the temporary pressman better. And what we realized while Mike has been gone is that he didn’t work very hard and was making too many mistakes that caused us to get the paper out later than we could have.

“He’s just using the system,” he continues. “I want you to call Mike and tell him we can’t use him anymore. He’s fired. Then we can hire the temp and Mike can sit home and collect unemployment for a while.”

Reality worse

I’ve never made it past this point in the dream; I just sit up straight, sweating. For an HR manager, the reality of a return-to-work situation like this is scarier than the nightmare.

In real life, these situations occur more frequently than we would like to admit. Very recently, a jury in Colorado awarded more than $8 million to a plaintiff who was not allowed to return to work several years after recovering from a brain aneurysm. And the company had to pay the plaintiff’s attorneys’ fees and costs too.

HR/EHS managers who have been through these return-to-work situations can testify that they are the quicksand of the workplace. With no visible solid ground, the slightest misstep can be fatal. The array of laws from which “Mike” can choose to sue the newspaper is vast. Mr. VP of production, consider the following before you hand Mike his final paycheck:

The Americans With Disabilities Act - The ADA prohibits adverse job action against an employee who is able to perform the essential functions of a job with reasonable accommodation. Depending on the job’s “essential functions,” a redesigned workstation, reduced hours or intermittent leave may constitute a reasonable accommodation. If Mike’s requested accommodations are reasonable and won’t break the bank, we have to back off and let him return to work.

Family and Medical Leave Act - The FMLA protects employees from an employer’s interference with requested leave and from retaliation for exercising FMLA rights. A valid FMLA leave requires the employer to reinstate a returning employee to his or her previous job. Employees who exercise their right to sue for an FMLA violation may also sue the manager who made the decision to terminate them. Will the newspaper’s insurance cover paying for the VP’s legal bills? Will it cover the press manager’s legal bills? Oh, and let’s not forget me, the HR person. In Mike’s case, the VP and HR director’s time would be well spent in evaluating his requested return to the workplace in the FMLA context to ensure that Mike’s federally protected FMLA rights are not violated. If Mike’s leave is a valid FMLA leave, he’s entitled to his previous job regardless of how poor an employee he was before he took leave.

Workers’ compensation - Although workers’ compensation laws vary from state to state, there is one constant. If an employee is unable to work because of a workplace injury, he or she will receive a substantial increase in workers’ compensation benefits. This may fall into the “that’s the least of our worries” category in Mike’s situation but workers’ compensation settlements can result in long-term increases in the newspaper’s insurance premiums or significant expenditures for the newspaper if it is self-insured.

Wrongful discharge - In many states, an employee cannot be terminated because he or she files a workers’ compensation claim. The tort of “retaliatory discharge” allows an employee to recover his or her lost wages, money damages for humiliation, punitive damages to punish the wayward employer and, in some cases, attorneys’ fees. The VP’s decision to fire Mike because he believes he’s “using the system” will give that term a whole new meaning as it relates to the company coffers, both in dollars spent, lost time and its reputation in the community. And chances are that if Mike, or Mike’s lawyer, knows how to “use” the workers’ compensation system, he’s also pretty adept at “using” the judicial system as well.

Breach of implied contract - In some states, an employee has a cause of action against his or her employer if the employer violates its own internal policies on how employees are to be treated. Employee-handbook policies for workers’ compensation, paid time off, sick leave and other absences can be used effectively against a company at trial. That’s especially the case if the company violated the policy in terminating an employee who, by policy, had additional time off available. Watching a plaintiff’s attorney wave the offending policy under the nose of the VP at trial is akin to watching someone - the publisher - get beat up with his own stick. The production VP must remember that he is in a chess game, not a boxing match, and must think carefully before making his move. A careful review of the handbook and the company’s policies regarding leave and return to work is definitely in order. Taking the time to comply with company policies is also probably a good idea for the HR director and the VP of production.

Written contract - Returning an employee to work may also involve following the terms of a collective-bargaining agreement, a written employment contract, or some other agreement between the employer and the employee. The vice president is smart not to break the terms of any such agreement.

I know there are other laws but listing them would only make my nightmare worse. And explaining each of these laws and the employee’s rights and protections to a company vice president hell-bent on firing an employee is overwhelming.

On my best nights, I can get back to sleep by dreaming of giving the under-performing employee his job back. It doesn’t matter that he doesn’t do the job very well. On my worst nights, I visualize firing Mike, then staring at the ceiling and counting, like sheep, the number of days until the statute of limitations runs out for Mike to file his lawsuit.

Ken Columbia is the Newspaper Association of America’s director of industry staff development. He can be reached via e-mail at coluk@naa.org.