Coupled with the impact of the recession, the sweeping changes in the newly enacted ADA Amendments Act (ADAAA) and the Family and Medical Leave Act (FMLA) have severely altered the economic and legal landscape for facilities management. These are two major reasons why, even in difficult economic times, a strong return-to-work (RTW) focus improves your bottom line.
For building owners and facilities managers, communication with the injured worker is vital. Although it’s true that the building owner often takes the lead in purchasing workers’ compensation, it’s facilities managers who are down in the trenches with employees. Closest to the situation, you understand the job requirements and the opportunity for transitional work. You’re also in the best position to reach out to the injured employee and convey his/her concern and desire to be back on the job as quickly as possible. It’s paramount that a constant communication stream be set up between you and the injured worker.
In some businesses, when an employee is hurt on the job, the employer makes sure to send a card signed by all coworkers, wishing the injured employee a speedy recovery. While this may not be possible or appropriate in your situation, to do the opposite (not make the worker feel wanted and a valuable component to the job) can be a major mistake.
One example of how not making the employee feel valuable can be detrimental: An employee was hurt on the job and wanted badly to return to work. His injury required him to be hospitalized, and no one from his employer ever visited or called. By the time he was discharged, he was sitting home all day watching TV and became increasingly bitter. It’s no coincidence that daytime television is full of commercials for personal injury attorneys – he found one he liked and sued his employer.
And this was just one example of a common mistake employers make in the return-to-work process. Because facilities management employers often find it difficult to recognize the benefits of RTW, here are 10 other common mistakes that are made …
Mistake #1. Failing to recognize the increase in the number of employees covered by the ADAAA.
For employers covered by the ADAAA, more employees will satisfy the definition of disability and be entitled to reasonable accommodations, including employees who have suffered on-the-job injuries. You must make disability determinations without consideration of mitigating measures, such as medication, hearing aids, and assistive technology.
The ADAAA’s goal is to shift the focus from whether an employee is disabled to whether employers are complying with their obligations under the law.
When faced with litigation, in many cases, employers will no longer be able to argue over whether the worker is covered by the ADA. Employers will need to have an interactive process with disabled workers, wherein the employer discusses with the workers the reasonable accommodations that will allow them to perform their essential job duties. They will need to make sure managers know their obligations to provide reasonable accommodations and do not reject requests without appropriate analysis.
As a federal law, the ADA supersedes state workers’ compensation laws; 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.
Mistake #2. Insisting that 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’ comp costs and heightens the possibility that the injured employee will fall prey to "disability syndrome" (the failure to return to work when it, once again, becomes medically possible).
The criterion is the "essential functions of the job." Not all job functions are essential. Courts consider job descriptions and performance evaluations in determining what functions are essential to a job.
Review and update these documents to ensure that the essential functions for each
position are accurately described.
Mistake #3. Cutting the budget for RTW.
Employers seeking to cut expenses may target RTW programs. Yet cutting or delaying these programs can result in higher costs now and in the future.
The longer someone on your team is out on injury leave, the higher the cost, which adversely affects claim reserves and the experience modification factor (the adjustment made to the workers’ compensation insurance premium of companies that meet or exceed a certain size threshold), and increases the likelihood of litigation.
Furthermore, with today’s sharply reduced workforces, facilities management employees are often working beyond full capacity and can’t absorb the excess work of an absent coworker. In these situations, a troubling message is often sent to valued employees (injured and healthy), damaging an already vulnerable morale.
Mistake #4. Believing that RTW can’t address musculoskeletal injuries, such as back pain.
Low back pain is the most prevalent and costly work-related condition, but only a small fraction of workers with acute back pain ever progress to chronic disability.
A recent study concluded that workers who weren’t offered an accommodation, such as light duty or reduced hours, to facilitate the return-to-work in the first 3 weeks, were almost twice as likely to develop a chronic disability. These findings suggest that accommodations to facilitate working in the first few weeks after injury may play an important role in chronic disability prevention.
Mistake #5. Not distinguishing between "light duty," "transitional work," and "reasonable accommodation."
RTW assignments are best described as transitional tasks. Limited in duration, these tasks help the injured worker return to full productivity by being
progressively adjusted in line with medically documented changes in ability.
Under the ADAAA, it’s permissible to reserve "light-duty" jobs for those with work-related disabilities; these jobs should be distinct from transitional tasks. The ADAAA also stipulates that "reasonable accommodations" include, but aren’t limited to:
Making existing facilities used by employees readily accessible
Part-time or modified work schedules
Reassignment to a vacant position
Acquisition or modification of equipment or devices
Appropriate adjustment or modifications of examinations
Training materials or policies
Provision of qualified readers or interpreters
Other similar accommodations for individuals with disabilities
What does this mean? You don’t have to create an entirely new job for a returning injured employee – simply modify his/her old one. An example: Let’s say that your building complex includes a warehouse, and a facilities management employee has to drive a forklift that transports pallets with office air-conditioning units to a certain location. There, they are off-loaded and lifted on to shelves. If a back injury occurs in the course of this operation, there is no reason the injured employee, once he or she is able to return to "transitional" work, can’t drive the forklift.
Mistake #6. Being deterred from setting up transitional assignments because the employee might get hurt again.
The fear of re-injury often hampers RTW efforts. While this is, of course, a risk, an even greater risk is the employee staying at home and developing a "disability attitude" that extends his/her the absence and drives up costs.
Explain to the injured employee why it’s important to return to work, and tell him/her about the steps being taken to ensure safety. Be sure that job assignments meet the medical restrictions set by the treating physician, and stay in touch with the injured employee as to his/her comfort level with the assignment.
Mistake #7. Relying on the physician to guide the RTW process.
While physicians are medical experts, they don’t have essential information about workplace policies, job demands, and the availability of transitional work.
Moreover, if a physician’s training isn’t specific to the treatment of occupational injuries, he or she may not adhere to evidence-based guidelines. You must be proactive and take the lead role with the physician and the injured worker.
Mistake #8. Not taking time to understand the laws governing mandatory comprehensive medical exams before returning to work.
This is one of the most confusing aspects of RTW with the ADAAA – the FMLA and state workers’ compensation laws have different (and sometimes conflicting) requirements. Understanding the laws and how they apply to your specific circumstance is critical.
Mistake #9. Not establishing consequences for failure to comply with RTW requirements.
What’s important here is to understand the difference between disciplining and cutting off benefits. If an employee is covered by the FMLA and can’t perform one or more of the essential functions of his or her job, that employee may refuse transitional assignments and take FMLA leave.
However, the FMLA only creates an entitlement to unpaid leave; therefore, in most cases, the workers’ compensation indemnity payments may discontinue with the refusal to return to work. The employee retains the right to reinstatement to the position held when FMLA leave was taken.
Mistake #10. Believing that workers’ compensation settlements resolve ADA liabilities.
Under the ADAAA, more injured employees will qualify as "Qualified Individuals with a
Disability" and, as such, can assert their right under the ADA to a reasonable accommodation, irrespective of any workers’ compensation settlement.
During settlement negotiations, close coordination is necessary between the company’s legal, risk management, and HR departments to ensure that each office can accomplish its mandate without compromising the employee rights.
RTW is a proven business strategy in prosperous and difficult times. When properly implemented, RTW programs reduce costs and improve the bottom line.
Kevin Ring is the director of community growth for the Institute of WorkComp Professionals (www.workcompprofessionals.com). He can be contacted at email@example.com.