Transcript Stay at Work/Return to Work

Stay-at-Work/Return-to-Work
Elisabeth Simpson, M.S., CRC, JAN Lead Consultant
Lisa Mathess, M.A., JAN Senior Consultant
JAN is a service of the U.S. Department of Labor’s
Office of Disability Employment Policy.
1
Stay at Work/Return to Work
Objectives




Stay-at-Work/Return-to-Work
Best Practices
Situations and Solutions
Questions
2
Stay at Work/Return to Work
Stay-at-Work/Return-to-Work
Purpose of SAW/RTW programs:




Early intervention is the key to preventing disability
Short window of opportunity to prevent disability
Cost of retaining an employee is lower than often thought
RTW program helps ensure compliance with disability-related
legislation
JAN’s Return-to-Work Programs http://askjan.org/media/rtwprograms.html
3
Stay at Work/Return to Work
Statistics
 3,007,300 Work-related recordable injuries in 2013
 Median number of missed work days due to
occupational injury and illness: 8
 82% of employers who called JAN were attempting to
retain a current employee
Bureau of Labor and Statistics (2013) http://www.bls.gov/iif/
4
Stay at Work/Return to Work
Stay-at-Work
Goal of SAW: To keep an injured, disabled, or temporarily
impaired worker on the job, if medically feasible.
Employees who have a temporary impairment that does not
necessitate time away from the worksite may need
accommodations in order to stay at work.
Employers:




Should involve the physician throughout the process
Should involve the employee throughout the process
May be able to take advantage of incentives for SAW initiatives
Call JAN!
5
Stay at Work/Return to Work
Stay-at-Work
Benefits of SAW programs:
 Reduce number of lost workdays
 Maintain workforce productivity
 Lower risk of condition becoming long-term or
permanent disability
 Reduce WC costs
6
Stay at Work/Return to Work
ADAAA
Occupational OR Nonoccupational injury
Definition of “disability”
Look at restrictions,
limitations, and job tasks
Does not have to be
permanent disability
Not required to create
light-duty work
Workers Compensation
Work-related injuries
Eligibility based on state
law
Disability classification
 Totally disabled or
permanent disability
 MMI
Return-to-work programs
Light duty
EEOC Enforcement Guidance: Workers Compensation and the ADA
http://www.eeoc.gov/policy/docs/workcomp.html
7
Stay at Work/Return to Work
Other Laws
Are the ADA and Workers Compensation Laws the only
laws employers need to consider?
No




State civil rights/human rights laws
State disability benefits programs
Department of Labor laws
Family and Medical Leave Act (FMLA)
8
Stay at Work/Return to Work
Temporary Impairments
Under the ADAAA and its regulations, are temporary
impairments now covered?
 Neither the ADAAA or its regulations indicate whether
temporary impairments are covered or excluded
 Duration of an impairment is not that important anymore
 Don’t rule out coverage solely based on how long
impairment lasts
 Err on side of caution
9
Stay at Work/Return to Work
Return-to-Work
Goal of RTW: To return an injured, disabled, or temporarily
impaired worker to the workplace as soon as medically feasible.
Employees who have been on leave (FMLA, STD/LTD, ADA,
Workers Compensation, etc.) may need accommodations in order
to return to work.
Employers:




Can ask for a limited amount of medical documentation
Should involve the employee throughout the process
Should consider modifying any “100% restriction free” policies
Call JAN!
10
Stay at Work/Return to Work
Return-to-Work
Benefits of RTW programs:
- Retain valued employees
- Enhance workforce productivity
- Save on recruiting/training costs
- Reduce WC costs
11
Stay at Work/Return to Work
Medical Documentation:
 Employee requests accommodation and the disability
and/or need for accommodation is not known or
obvious
 Definition of disability: an
impairment that substantially
limits one or more major life
Activities
 Verify need for accommodation
 ADA confidentiality rules
12
Stay at Work/Return to Work
Direct Threat to Health & Safety
 Significant risk of substantial harm
 The specific risk must be identified
 It must be a current risk, not one that is speculative
or remote
 The assessment of risk must be based on objective
medical or other factual evidence
 Even if a genuine significant risk of substantial harm
exists, the employer must consider whether the risk
can be eliminated or reduced by reasonable
accommodation
13
Stay at Work/Return to Work
Administrative modifications for RTW:
Do’s
 Transitional employment
plans
 Implement a light duty
program
 Train on ergonomic
techniques
 Consider temporary
accommodations
Don’ts
 “100% Healed Policy”
 Make assumptions
14
Stay at Work/Return to Work
Best Practices
15
Stay at Work/Return to Work
Job Descriptions





Not required but can be a good business practice
Content, nature, and functions of job can change
Identify essential functions of job
Consider job analysis
Update periodically
JAN’s Accommodation and Compliance Series: Job Descriptions
http://AskJAN.org/media/jobdescriptions.html
16
Stay at Work/Return to Work
“100% Healed” policies
 “Regarded as” claims
 Blanket exclusions
 ADA requires individualized case-by-case analysis =
engage in an Interactive Process
Situation: A security guard ready to RTW had a 50lb lifting
restriction. The employer had a “100% Restriction Free”
policy; the employee was denied RTW unless he had no
restrictions and could lift over 50lbs.
Solution: The employee cited ADA and requested a policy
modification, showing that he never had to lift 50lbs in his job
and he was able to perform the essential functions.
17
Stay at Work/Return to Work
Temporary Accommodations
 Show good faith effort
 Keeps employees working
 Could be ADA violation if not granted
Situation: An editor with allergies and respiratory issues had
an exacerbation due to remodeling/construction at the
publishing office.
Solution: On a temporary basis, the employer permitted
telework until construction was completed and the irritants
were minimized.
18
Stay at Work/Return to Work
Light Duty
 ADA doesn’t require creation of light duty position
 Restructure original positon to mirror light duty
 Reassignment to vacant light duty job (even if reserved for
WC)
Situation: Maintenance worker with 10lb lifting restriction, the
job was physically well beyond medical restrictions. Employer
wanted information on generating light duty positions.
Solution: JAN provided information on light duty definitions
and accommodation solutions for light duty positions.
19
Stay at Work/Return to Work
Job Restructuring
 Reallocation of marginal tasks
 Performing essential functions in a different way
 May require other forms of accommodation (e.g.
equipment, schedule modification)
Situation: A school cook with a back injury was released to
return to work with a 25 lb. lifting restriction. The job required
her to lift and carry items that could weigh 25-40 lbs.
Solution: The employer offered to allow the employee to
break up items as needed and have extra time to carry them.
20
Stay at Work/Return to Work
Transitional Work Arrangement
 An employee is able to transition back to full-time work
over a short period of time
 No set requirement under the ADA to allow this
 Can benefit the employee from a medical standpoint
 Can benefit the employer from a productivity standpoint
Situation: A custodian with a knee injury was able to work
but not at full capacity. He asked to return part time and
gradually increase his hours.
Solution: The employer agreed to a transitional work
arrangement that would last 4 weeks, with the expectation
that the employee would be able to work full-time at the end.
21
Stay at Work/Return to Work
Plan of Action
A plan of action can be created with the employee and
employer and can include information such as:
 emergency contact information
 visual or audible warning signs
 how/when to provide on-site medical assistance
 how/when to call 9-1-1
 how to provide environmental support
 who to designate as emergency responders
 who to go to for help
 how to educate co-workers
22
Stay at Work/Return to Work
Reassignment




Can be a temporary or permanent reassignment
ADA would not require an employer to create a position
Can be useful when exploring accommodation options for own job
Can be the best option for all parties
Situation: A mail clerk in a corporate office was not able to lift items
heavier than 15 lbs. Most packages weighed more than this an there
were few clerks available to reallocate this task to.
Solution: The employer reassigned the employee to a filing clerk
position that was vacant while an employee was on medical leave.
This was a temporary arrangement but allowed the employee to
continue working and eliminated costs associated with hiring a
temporary employee for the filing clerk job.
23
Stay at Work/Return to Work
Leave
 Leave can be provided under the Family and Medical
Leave Act (FMLA), the ADA, or through workers
compensation
 Leave may be needed for a variety of reasons
 Leave can be intermittent
 When leave is granted as a reasonable accommodation an
employee is entitled to return to his/her same position
unless it would impose an undue hardship
 Employees should not be penalized for using approved
leave
 Paid accrued leave should be offered before unpaid leave
is provided
24
Stay at Work/Return to Work
Leave
 Can’t force employees to stay at work if FMLA eligible
 Can’t force employees to take ADA leave instead of
accommodations to enable stay at work
 Can’t force employees to take leave until the Interactive
Process is complete (most situations)
25
Stay at Work/Return to Work
Third Party Vendors
 Pros
 Consistency
 Focused attention
 Potentially faster
 Cons
 Not as familiar with the workplace
 Does not know employees
 Employees do not know the vendor
26
Stay at Work/Return to Work
Third Party Vendors





Make sure the vendor is knowledgeable about the ADA
Bring the vendor to the workplace to meet employees
Explain what the vendor will be doing and why
Stay involved in the process
Stay in communication with your employees
27
Stay at Work/Return to Work
Other partnerships




Disability-related benefits programs
Employee assistance programs
Wellness or health care benefits programs
JAN!
28
Stay at Work/Return to Work
Other resources
 Ask the person for his/her ideas
 Check Out the JAN Website
 A-Z of Disabilities
 SOAR
 Contact Local and State Resources
 State Vocational Rehabilitation Agencies
 State AT Projects
 Rehabilitation Engineering and Assistive Technology
Society of North America (RESNA)
 For Federal Employers
 CAP
29
Stay at Work/Return to Work
30
Stay at Work/Return to Work
Situations & Solutions
31
Stay at Work/Return to Work
Situation:
A cashier was released to return-to-work following a
knee replacement surgery. She had standing
restrictions.
32
Stay at Work/Return to Work
Solution:
The employer contacted JAN looking for possible
accommodations. A JAN consultant discussed the
use of a stand/lean stool behind the cashier counter.
33
Stay at Work/Return to Work
Situation:
A home health nurse return-to-work following a MS
flare up. She was experiencing body weakness and
fatigue, which made it hard to lift patients.
34
Stay at Work/Return to Work
Solution:
The employer assigned the nurse to clients that
were more mobile and looked into purchasing
patient lifts.
35
Stay at Work/Return to Work
Situation:
An accountant with cancer requested a modified
schedule while undergoing treatment.
36
Stay at Work/Return to Work
Solution:
Instead of a modified schedule, the employer
allowed telework from home and provided a laptop.
37
Stay at Work/Return to Work
Situation:
A secretary with an arm impairment couldn’t type as
fast as she used to. Her productivity was falling
behind. Her employer wanted to put her on leave
until she was medically recovered.
38
Stay at Work/Return to Work
Solution:
After consulting with JAN, the employee requested
a one handed keyboard and a hands-free headset.
These assistive technologies enabled her to meet
production standards while staying at work.
39
Stay at Work/Return to Work
Situation:
A certified nurse assistant with depression was on
leave for 4 months. Her doctor released her to
return-to-work with light duty. Her medications
caused muscle weakness and concentration issues.
The employer told her to resign or return to work full
capacity.
40
Stay at Work/Return to Work
Solution:
A JAN consultant suggested she write a letter
requesting accommodations under the ADA. She
asked for a temporary reassignment to a clerical
position until she adjusted to her medications.
41
Stay at Work/Return to Work
Situation:
A school custodian slipped and injured his hip. He
was placed on medical leave for 2 weeks. The
doctor was willing to release him to return-to-work
as long as he didn’t climb ladders anymore.
42
Stay at Work/Return to Work
Solution:
After engaging in the interactive process with the
employee, the employer restructured the custodial
job by removing ladder climbing from his job
responsibilities.
43
Stay at Work/Return to Work
Situation:
A social worker with epilepsy was placed on driving
restrictions. Her job included driving to client sites
and doing interviews. Driving was considered an
essential function.
44
Stay at Work/Return to Work
Solution:
The employer contacted JAN for accommodation
suggestions. After learning that the ADA doesn’t
require removal of essential functions, the employer
decided to temporarily remove this function and pair
the employee with a colleague who could drive her
to client sites. This enabled the employee to stay at
work and maintain productivity.
45
Stay at Work/Return to Work
JAN Consultants can be reached M-F 9am-6pm ET
 Phone: (800) 526-7234 (V); (877) 781-9403 (TTY)
 Email: [email protected]
 Skype: Janconsultants
 Text: (304) 216-8189
 Chat available online at AskJAN.org
46
Stay at Work/Return to Work
Questions? AskJAN.org
47