By Kevin Ring
By lowering the length and duration of time away from work due to injuries and illnesses on or off the job, return-to-work (RTW) programs have reduced workers’ compensation, disability and medical insurance costs as well as strengthened morale and productivity. More recently RTW programs have helped protect employers from lawsuits regarding regulatory non-compliance, particularly related to the Americans with Disabilities Act Amendments Act of 2008.
Traditionally, employers focused on helping employees who were injured at work get back to work early with return-to-work (RTW) programs. Recognizing the value of a healthy work force, the commonalities of recovering from on- and off-the-job injuries, the efficiencies of coordinating RTW efforts and the greater risk exposure to discrimination claims when workers are treated differently depending on the reason for their absence, some employers are moving toward integrating occupational and non-occupational cases to reduce absences and lower claims costs.
Whether the program is an integrated occupational/non-occupation RTW or a traditional RTW, the economic and legislative landscape poses challenging issues for employers. Here are 10 common mistakes:
1) Failure to effectively manage the increase in number of employees covered by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA).
There is now little doubt that the expanded definition of disability under the ADAAA has significantly increased the number of employees who are entitled to accommodations. The definition of disability is so broad that some labor and employment attorneys advise not to fight whether the employee is disabled but to engage in a dialogue to find out the limitations and discuss accommodation possibilities.
The ADAAA requires covered employers (those who have 15 or more employees) to assess accommodations for any worker who might need them, regardless of whether the disability arose from a work or personal injury or illness. The Equal Employment Opportunity Commission (EEOC) has taken the position that employers with inflexible leave policies violate the ADA by failing to accommodate employees covered by the act.
High profile cases include a $6.2 million settlement involving Sears Roebuck’s’ automatic termination of employees whose leave expired under the company’s policy on workers’ compensation absences, and the nationwide truckload carrier, Interstate Distributor Co., which was order to pay $4.85 million to settle a disability discrimination lawsuit. The EEOC found that the company’s maximum 12 weeks of leave, consistent with FMLA, and its “no restrictions” policy, requiring employees be 100 percent healed and able to perform 100 percent of their job duties before they could return to work, violated the ADA.
The linchpin of an employer’s obligation to a qualified individual with a disability under the ADA is the interactive process for reasonable accommodation. While the ADA doesn’t prohibit employers from having a maximum leave policy, exceptions to the policy must be made on a case-by-case basis to reasonably accommodate people with disabilities.
Also, a program that limits the availability of transitional jobs to a certain class of workers – those who are injured on the job – risks violating the ADA unless there is a legitimate business reason for doing so. The EEOC found Jewel-Osco violated the ADA by prohibiting disabled employees from participating in the company’s 90-day light duty program if they were not injured on the job.
As a federal law, the ADA supersedes state workers’ compensation laws, and therefore, its directives provide the floor level protection for disabled individuals. State workers’ compensation laws can provide more protection, but not less. Properly structured, RTW programs can decrease the ADA exposure.
2) Insist employees be released to “full duty” before returning to work.
Considerable evidence exists about the value of RTW programs that provide a means for employees to transition back into their full-duty jobs with responsibilities and tasks modified for short periods of time. Insisting on a return to “full duty” increases workers’ compensation costs and heightens the possibility that the injured employee will fall prey to a “disability syndrome” – the failure to return to work when it is medically possible.
An individual’s sense of self-worth and motivation often comes from the ability to be productive. When that is taken away, depression can set in or an unfounded belief in the seriousness of the injury can extend the absence and drive up costs.
The EEOC has also spoken on this issue. In 2011, Supervalu Inc., American Drug Stores and Jewel Food Stores Inc. were found to have violated the ADA with inflexible leave policies that prohibited employees on one-year paid disability leave from returning to work unless they could return without any accommodation to full service and had no physical or mental restrictions. If a worker still has medical restrictions at the point of maximum medical improvement, the employer needs to compare the worker’s abilities with the essential functions of the job, not with some arbitrary standard of 100 percent fitness for work.
3) Do not account for co-morbidities.
Co-morbidities are health issues that can complicate or delay an employee’s recovery, such as diabetes, obesity, hypertension, depression and so on. It is well documented that the presence of co-morbidities significantly increases the cost of workers’ comp claims.
There are valuable disability guidelines that predict how long it “normally” takes for a worker to return to work. While it’s important to ensure that the duration of modified job assignments is not indefinite, inflexible adherence to the guidelines can lead to problems and potential discrimination suits, particularly when there are co-morbidities involved.
In order to get claimants back to functionality, workers’ comp has shouldered much of the cost for treating co-morbidities, particularly for claimants who do not have health insurance. Although the cost may shift under Obamacare, it will take time and it’s too early to determine the overall impact on the bottom line.
Since chronic conditions are major drivers of workers’ compensation, health and disability costs, proactive employers are expanding preventive services and wellness initiatives to make the work force healthier.
4) Fail to commit the budget or resources.
While the RTW has not escaped the pressure to cut costs during the sputtering economic recovery, the direct and indirect costs of absences as well as the exposure of non compliance with federal and state regulatory and statutory requirements is likely to be far more costly than implementing a RTW process. And the longer employees are out of work, the less likely they are to return.
Some employers bring workers back to work as early as possible to reduce claim costs but are not committed to a RTW program. Without a planned transition back to full productivity, employees will not build up the tolerance to resume full job duties. Also, the plan needs to deal with potential failures; not every injured worker will return to the pre-injury occupation.
The costs to implement a program will vary depending upon industry, company size and injury history. The good news is that there are ample resources from insurance carriers, insurance agents and governmental agencies to guide the process.
5) Be deterred from setting up transitional assignments because the employee “may get hurt again.”
Employer and employee fear of re-injury often hampers RTW efforts. This is a risk, but an even greater risk is having the employee stay at home and develop a “disability attitude” that extends the absence and drives up costs. The right timeline and transitional process for an employee to return to work is best done on a case-by-case basis. Guided by the goal of safely returning the employees to their pre-injury jobs, employers who work and stay in touch with injured employees, the treating physicians and supervisors are most successful.
6) Don’t distinguish “light duty” from “transitional work” from “reasonable accommodation.”
The definition of these terms is complicated and confusing. Occupational RTW assignments are best described as transitional tasks. Limited in duration such tasks help the injured worker return to full productivity by being progressively adjusted in line with medically documented changes in the employee’s ability. Under the ADAAA, it is permissible for an employer to reserve less physically demanding or “light-duty” jobs for those with work-related disabilities and these jobs should be distinct from transitional tasks.
“Reasonable accommodations” involves changes to a job so that a person with a disability can perform the essential functions of the job. It can take many forms and the EEOC expects an individualized analysis and justification for every employee with a physical or mental impairment that qualifies for coverage under the ADAAA. Failing to explore all options, including extended leaves or temporary positions, have landed a number of employers in trouble with the EEOC. Case law, consent decrees and EEOC guidance on best practices help to execute the interactive process appropriately.
7) Rely on the physician to guide the RTW process.
While many employers have recognized that they need to take the lead role with both the treating physician and injured worker, others still rely on the physician. While physicians are medical experts, they do not have essential information about workplace policies, job demands and the availability of transitional work. Moreover, if a physician’s training is not specifically in the treatment of occupational injuries, they may not adhere to evidence-based guidelines.
8) Don’t understand how laws overlap and conflict.
The overlapping and often conflicting requirements of ADA, FMLA, workers’ compensation and a plethora of state laws are an administrative nightmare. There are differences in eligibility, leave lengths, job reinstatement requirements, access to medical information, fit-for-duty certifications and so on. More than one law can affect the same situation and each must be considered. For this reason, a “silo” structure, in which separate areas manage workers’ compensation, disability and health can be problematic, inefficient and duplicitous. This quagmire adds to the challenge of integrating occupational and non-occupational RTW. Ultimately, the entire organization is responsible for the knowledge possessed by any part of the organization and an employer needs to determine the best process for its needs and circumstances.
9) Don’t stay focused on the goal and establish consequences.
The ultimate goal of RTW is to transition workers back to their pre-injury job. Whether it’s a result of a poorly managed program, lack of knowledge or fear of violating a law, some employees remain in areduced-productivity position too long, or indefinitely. An Integrated Benefits Institute survey revealed a RTW focus on the employee’s own job, modified as necessary, ranked as the most important factor in successful RTW. Requiring mandatory participation was the second most important program feature affecting RTW success.
While employees cannot be required to accept transitional assignments when on FMLA leave, in most cases, the workers’ compensation indemnity payments may discontinue with the refusal to return to work. Even under the ADAAA, “indefinite” leave is not considered a reasonable accommodation and such leave must make it reasonably likely that the employee will be able to return to work and perform the essential functions of his or her job.
10) Believe workers’ compensation settlements resolve other liabilities.
One size does not fit all. Obligations under the various laws are reconciled separately. During settlement negotiations, close coordination is necessary between the company’s legal, risk management and HR departments to ensure that each office is able to accomplish its mandate without compromising the employee’s rights.