Good Returns | Sound advice to avoid return-to-work mistakes
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 employers. These are two major reasons why, even in difficult economic times, a strong return-to-work (RTW) program improves an employer’s bottom line.
Because employers often find it difficult recognizing the benefits of RTW, they tend to make a handful of common mistakes.
Understanding Coverage
For starters, at companies covered by the ADAAA (those with 15 or more employees), more employees will satisfy the definition of disability and be entitled to reasonable accommodations, including those employees who have suffered on-the-job injuries.
Employers covered by the ADAAA must make disability determinations without consideration of mitigating measures such as medication, hearing aids and assistive technology.
The ADAAA’s stated 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, employers, in many cases, 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, where the employer discusses with them the reasonable accommodations that will allow them to perform their essential job duties.
As a federal law, the ADA supersedes state workers’ compensation laws, which means it provides the floor-level protection for disabled individuals. Properly structured, RTW programs can decrease the ADA exposure.
Just The Essentials
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 have been found to be very valuable.
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.
For employers covered by the ADAAA, the criterion is the “essential functions of the job.” Courts consider job descriptions and performance evaluations in determining what functions are essential to a job.
Employers should review and update these documents to ensure that the essential functions for each position are accurately described.
Consider All Ramifications
Employers seeking to cut expenses may target RTW programs, but doing so can result in higher costs both now and in the future.
The longer an employee is out on injury leave, the higher the cost, adversely affecting claim reserves as well as increasing the likelihood of litigation.
Furthermore with today’s sharply reduced workforces, employees are often working beyond full capacity and cannot absorb the excess work of an absent co-worker.
Smart Settlements
Under the ADAAA, more injured employees will qualify as “Qualified Individual 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 is able to accomplish its mandate without compromising the employee’s rights.
Kevin Ring is the director of community growth for the Institute of WorkComp Professionals. He can be reached at kevin@workcompprofessionals.com.
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