December 15, 2017

Kimberly Webb: Is Your Return to Work Program ADA-Compliant?

By Kimberly T. Webb, JD, Director National Technical Compliance – ADA Accommodations, Sedgwick

Kimberly WebbEstablishing an effective return to work program is a proven business strategy that enables an organization to retain valuable talent and improve the overall productivity of its workforce when injuries occur. The ultimate goal of such a program is to enable injured employees to recover and return to a full duty position. It’s important to remember that return to work programs should be utilized for both occupational as well as non-occupational injuries and illnesses. However, the administrative and regulatory complexities surrounding return to work make it imperative for employers to routinely review their programs to ensure compliance and effectiveness. Employers should have a clear understanding of a return to work program’s essential characteristics, its key components and potential benefits, and how to comply with the Americans with Disabilities Act (ADA).

Essential characteristics and components
An effective return to work program has several defining characteristics. It should help employees return to work at the earliest possible date following an injury or illness. It should always comply with medical work restrictions. And it should include the capability to accommodate a temporary assignment that is physically or mentally less demanding than normal job duties. While employers may differ in the types of return to work programs they offer, most are familiar with three common programs: light duty, modified duty and transitional duty. Each variation can be effective as long as it is temporary in nature, well-defined and documented to ensure consistent application and administration among employees.

No two injuries or employees will ever be alike, but it is important for employers to have a written return to work policy to ensure consistency in administration of the program among varying circumstances. Key policy components include company commitment, communication and job descriptions.

As an example, the policy should clearly outline roles and responsibilities for both the employer and the employee when it comes to return to work issues. Define expectations and obligations on the front end. It is also imperative the policy specify timeframes associated with the return to work program. While timeframes and program length may vary – perhaps 90, 180 or 270 days – it is essential that return to work programs be temporary in nature. Communicate this detail both early and frequently during the process.

Training of front-line supervisors is also necessary to ensure proper communications and responses in support of the policy. An onsite return to work coordinator can assist in such training initiatives, as well as assist employees with questions or concerns and ensure compliance with the company’s program.

Also, employers should create job descriptions that are both written and current. In the event of a dispute regarding accommodation, organizations can struggle if an employee is able to demonstrate that their written job description does not match their typical assignments and duties performed.

Benefits of a well-designed program
The benefits of a well-designed and administered program can be enormous. An effective return to work program can deliver sizeable cost reductions. Savings are achieved by reducing costs to disability leave programs as well as claims, including such expenses as loss of productivity and retraining costs. Effective programs also reduce the need to replace employees, lower employee turnover, and reduce associated costs with new hires such as recruitment, hiring and onboarding.

Another benefit of return to work programs is improved employee engagement. Return to work facilitates better employer and employee communication and helps retain a more experienced workforce.

A third benefit of an effective return to work program is increased productivity. Work can be beneficial to one’s health. With daily productivity, employees typically heal faster and require less medical care.

The value and importance of compliance
Let’s not forget the value and importance of compliance with the ADA. The ADA was enacted in 1990 and amended in 2008. It was designed 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. Notably, it prohibits discrimination, retaliation or harassment of disabled persons.

Employer policies that require employees to be completely free of restrictions violate the ADA. One of the ways an employee can meet the definition of disability is to show that the employer regarded the individual as having a disability. In some cases, 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% healed. Using a “100% healed” standard violates the ADA because it removes the opportunity for the employee to pursue reasonable accommodation.

Finally, in the case of Audette v. Town of Plymouth, Mass., No. 15-2457 (1st Cir. 2017), the court determined four key points an employer should remember when utilizing return to work reassignment under the ADA. First, to be entitled to a transfer, an employee must show that they 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 reopen 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 program and offer assignments consistently based upon ability and restrictions imposed.

Best practices
Return to work programs pose challenges and complexities but are essential employment practices. Employers can benefit by adhering to the following return to work best practices:

  • Develop a written return to work policy that includes roles and responsibilities, timeframes, training and updated job descriptions among its key components.
  • Send frequent, consistent communications to the employee indicating how long they have been on light duty, policy timeframes and repercussions, and incorporate ADA accommodation language in communications.
  • Review any request for light duty within the ADA rules and start the interactive process.
  • Do not maintain or enforce 100% healed policies or philosophies.
  • Comply with the ADA, including its overall reach beyond light duty assignments.

Return to work programs are not only necessary in today’s business world; they are the right thing to do in terms of caring for employees. Return to work programs offer organizations potential cost savings, continued access to valuable talent, and can enhance productivity when injuries or disabling conditions occur.

About Kimberly T. Webb, JD
Kimberly Thacker Webb is the National Director for Technical Compliance – ADA for Sedgwick. She is responsible for the ADA product and establishes the company’s best practices for Sedgwick’s Accommodation programs. She ensures these practices are implemented across the company, and serves as the ADA technical resource expert, provides high level support to the operation teams and clients on complex ADA cases, and monitors and communicates legal case decisions impacting Sedgwick’s services.

Kimberly has several years of experience in the areas of disability, absence, and workers’ compensation with significant focus on ADA and FMLA program development and oversight. She started her career as a Risk Manager with the City of Carrollton Texas where she was responsible for Risk and Disability policy development and standard operating procedures. She then moved to a Human Resources & Risk Management Consultant role where she continued her focus on employment practice analysis, FMLA/ADA programs, HR Policy and Procedure development, and training/education programs. To further her career in this arena, she became the Director of Integrated Disability Management for Texas Health Resources where she led a team managing their FMLA/ADA programs in house and most recently, she served as the Director of Human Resources for Tenet Healthcare.

Kimberly obtained her Juris Doctorate in Law from Texas Wesleyan School of Law and a Bachelor of Arts in Political Science from Howard University.

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.

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