December 15, 2017

Bryon Bass: ADA Compliance, RTW, and Workers’ Comp: Let the Interactive Process Be Your Guide

By Bryon Bass, SVP, Disability and Absence Management, Sedgwick

Bryon BassWorkers’ compensation programs are subject to both federal and state statues. Moreover, they can be further complicated by internal structures and administrative complexities. As an example, an organization’s workers’ compensation program is subject to the statues of the state in which the employee works. These state statues can determine such issues as the amount and schedule of benefit payments, selection of treating physicians, and use of managed care techniques. Workers’ compensation is also impacted by federal legislation such as the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). For example, employers must structure their return to work programs in a manner that is compliant with the ADA as it pertains to reasonable accommodations.

The ADA was enacted to prohibit discrimination based on disability. Under the ADA, employers are required to provide reasonable accommodations to qualified individuals with disabilities unless doing so would pose undue hardship on the organization. Notably, the ADA applies to both occupational as well as non-occupational injuries and illnesses.

Employer policies that require injured employees to be completely free of restrictions before returning to work are in violation of the ADA. There have been cases where employees have proven that their employers regarded them as having a disability by showing that the employer would not let them return to work until 100% recovered. Using a 100% recovery standard violates the ADA because it removes the opportunity for the employee to pursue reasonable accommodation.

To ensure ADA compliance, employers should create and implement a consistent leave of absence approach across the organization, regardless of what caused the injury or where it happened. Reasonable accommodations must be provided on a consistent basis. Adherence to the interactive process is one way to ensure compliance.

The interactive process helps an employer determine if an employee has a disability and whether there are reasonable accommodations that can be made for the disabling condition. The process is triggered when the employer becomes aware of an employee’s disability and that person has requested an accommodation or displays a need, or when an employee has exhausted all leave whether due to a work-related or non-work-related injury or illness.

The job accommodation network (JAN), a service of the U.S. Department of Labor, has identified six steps an employer should consider when initiating the interactive process1:

  • Recognize an accommodation request or a duty to start the interactive process.
  • Gather information needed to assess the employee’s situation, such as impairment or restrictions and a job description that outlines the tasks the employee performs.
  • Explore what accommodations might be available to the employee and identify what environmental modifications could be made.
  • Choose the accommodation. If there are multiple accommodations available, ask the employee which is preferred when it is possible to do so.
  • Implement the accommodation and offer assistance throughout the process as needed.
  • Monitor the accommodation to ensure it is working as intended.

An employer should have a written return to work policy that incorporates and defines the interactive process among its key components. When there is an injury or disability, send frequent, consistent communications to the employee outlining how long the employee has been on light duty, policy timeframes and repercussions. It is important to incorporate ADA accommodation language in these communications.

When it comes to reassignment to light duty and compliance with the ADA, there are some important points to remember. First, to be entitled to a transfer, an employee must show that he can perform the essential functions of the desired position and that there is an actual vacancy. Second, an occasional need is not proof of a vacancy. An employer has no obligation to re-open a position that no longer exists. Third, when offering special light duty assignments that have a limited lifespan, it is important to be consistent and maintain solid documentation of when vacancies close and why. Fourth, opening assignments selectively to some but not others can create problems. Employers must be consistent in the way they administer the return program and offer assignments consistently based upon ability and restrictions imposed.

Too often, departmental silos with their own internal policies and procedures can make it difficult to implement consistent programs that adhere to internal standards and comply with statutory regulations. In the years ahead, the industry is likely to see more employers tearing down departmental walls in favor of a more collaborative work environment between risk management and human resources.

The intersection of workers’ compensation with the ADA provides an ideal illustration of how workers’ compensation and benefits managers can work in tandem to create more effective and efficient programs. Let the interactive process be your guide. The potential program outcomes in terms of increased productivity, improved employee experience and reduced costs are well worth the effort.

About Bryon Bass
Mr. Bass is SVP, Disability and Absence Practice & Compliance with Sedgwick. In this position, he is responsible for overseeing disability and absence management product standards and compliance, quality, and disability payroll. Previously, Bryon was the director of integrated disability management at Pacific Gas and Electric where he oversaw companywide integrated delivery of disability and absence management services, comprised of self-insured/self-administered workers’ compensation, fitness for duty, leave of absence, accommodation and time-off programs.

Bryon has a wide range of experience in health and productivity management, both from an employer benefits role perspective as well as third party administration. His responsibilities have included client relationships, service operations and product management for disability and absence management products. Bryon has also been active as an author and seminar leader dealing with FMLA implementation, corporate health and wellness strategies, workers’; compensation metrics and disability program design.

Bryon earned a Bachelor of Science in business and a minor in e-business, University of Phoenix.

About Sedgwick
SedgwickSedgwick Claims Management Services, Inc., is a leading global provider of technology-enabled risk and benefits solutions. At Sedgwick, caring countsSM; the company takes care of people and organizations by delivering cost-effective claims, productivity, managed care, risk consulting and other services through the dedication and expertise of nearly 15,000 colleagues in some 275 offices located in the U.S., Canada, U.K. and Ireland. Sedgwick facilitates financial and personal health and helps customers and consumers navigate complexity by designing and implementing customized programs based on proven practices and advanced technology that exceed expectations. Sedgwick’s majority shareholder is KKR; Stone Point Capital LLC, La Caisse de dépôt et placement du Québec (CDPQ) and other management investors are minority shareholders. For more, see www.sedgwick.com.

Notes
1www.askjan.org

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