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.

EHS Today Online Feature: 10 Costly Return-to-Work Mistakes
EHS Today