Editor's Note: This article has been provided by Kevin Ring, Director of Community Growth for the Institute of WorkComp Professionals.
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 ADAAA.
The ADAAA requires covered employers (those who have 15 or more employees) to assess accommodations for any worker who might need themregardless 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 ordered 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.
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.
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 plannedtransition 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.
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. Lack of understanding about how laws overlap and conflict. The overlapping and often conflicting requirements of ADA, FMLA, Workers’ Comp 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. Yet,at the same time, this quagmire adds to the challengeof 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.