Employers are so focused on managing workers compensation injuries that they often forget that the injury itself is the gateway to employment litigation. Until now, employers have systematically overlooked and downplayed the link between the Americans with Disabilities Act (ADA) and workers compensation. As employers were asleep at the switch, the US Equal Employment Opportunity Commission (EEOC) was working diligently to remind us that the ADA is the 6.2 million dollar elephant in the workers compensation room.  

On September 29, 2009, The U.S. Equal Employment Opportunity Commission (EEOC) announced a record-setting consent decree resolving a class lawsuit against Sears, Roebuck and Co. (Sears) under the Americans with Disabilities Act (ADA) for $6.2 million. The consent decree, approved by Federal District Judge Wayne Andersen, represents the largest ADA settlement in a single lawsuit in EEOC history. The EEOC’s suit alleged that Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA. Read the case here – EEOC Website

This case not only highlights the link between workers compensation and the ADA but it magnifies the fact that twenty years after the ADA was enacted employers are still struggling to understand the process. Even large employers have a hard time balancing and defining the ADA exposure as they manage the work related disability. The EEOC Chicago District Director John Rowe, who supervised the agency’s administrative investigation preceding the lawsuit, said that the case arose from a charge of discrimination filed with the EEOC by a former Sears service technician, John Bava. According to Rowe, Bava was injured on the job, took workers’ compensation leave, and, although remaining disabled by the injuries, repeatedly attempted to return to work. Sears, Rowe said, “Could never see its way clear to provide Bava with a reasonable accommodation which would have put him back to work and, instead, fired him when his leave expired.”

The underlying issue that this case raises is the importance of having a proactive return to work program that not only satisfies the workers compensation exposure but addresses the looming ADA accommodation requirements. It’s quite simple when employees are injured on the job employers must have a predefined plan, in place, that addresses return to work options as well as ADA accommodations. We can no longer discard injured employees from the workforce, we have to make a valiant effort to get injured employees back to work and keep them there successfully.  

If it’s so simple, why do employers struggle to create proactive return to work opportunities? And why do they fail to understand how the ADA exposure is created?

Let’s walk though a typical case that illustrates how intertwined and complicated the ADA exposure is, especially when you are balancing State workers compensation and Federal Leave guidelines.

Ouch, I’m Injured – The ADA Exposure Begins – Now!

David is a warehouse clerk, with a large multi-state employer; his job requires lifting up to 75 pounds. David lifts a box and injures his back – a workers compensation claim is filed and David is referred to an orthopedic surgeon, who eventually recommends surgery. David has back surgery and is left with significant lifting restrictions that not only affects his major life activities, but may prevent him from doing his pre-injury job without some accommodation. Several weeks after surgery and rehabilitation David’s orthopedic surgeon releases him to return to work light duty with restrictions of no lifting over 15 pounds.   

David contacts his employer to return to work and he is told that they can not accommodate his light duty restrictions. His employer request that he stay at home, continue to collect workers compensation and contact them when he is feeling better – a typical conversation that occurs when employers do not have effective return to work policies or procedures – strike one in the ADA compliance process.

David continues to contact his employer because he wants to return to work, he is told repeatedly that there is no job available to accommodate his restrictions – strike two in the ADA compliance process.

Eventually, David is released to return to work full duty with permanent restrictions of no lifting over 20 pounds. David contacts his employer to return to work and he is told that they do not have a job available within his permanent restriction. David advises his employer that he can do his regular job if, he can use a Forklift to lift any items over his lifting restriction. The employer says no – they are afraid David will have another injury because his pre-injury job requires lifting up to 75 pounds – strike three in the ADA process – the employer is now out of compliance.

To further complicate matters, while the workers compensation process was under way, David’s employer puts him on Family Medical Leave (FMLA) which provides David with 12 weeks of job protection. The company’s leave policy mandates termination at the end of the 12 weeks of FMLA protection. Based on their leave policy, David is slated for termination because his FMLA protection has expired. The employer promptly contacts their insurance carrier attempting to settle David’s workers compensation claim – there’s no need to discuss return to work because David will be offered a monetary settlement –at this point the EEOC is knocking on the employers’ door. 

In this example, the employer does not evaluate reasonable accommodations that could help David return to work light duty, they did not have the interactive conversation with David to evaluate the type of the accommodations he is requesting, which is required under the ADA. David, a long term employee, feels that there are other ways to accommodate his restrictions but his employer is not willing to work with him so he hires an attorney and the ADA Elephant is now in the room. 

Most employers do not understand the difference between workers compensation disability and qualifying for ADA protection. The key difference between workers compensation and ADA is: workers compensation was designed to provide injured employees with medical and financial assistance following a work related accident. The ADA was enacted by Congress to protect individuals from discrimination associated with their disability and to provide reasonable work accommodation, if the employee qualifies for this protection.  The exposure is created when employers do not have proactive return to work policies, when they deny reasonable accommodation and when they are more interested in terminating injured employees who have work related disabilities than brining them back to work.

David’s employer incorrectly assumes that because he did not qualify for permanent disability under workers compensation he does not qualify for Americans with Disabilities Act protection or accommodation. The confusion, under the workers compensation system, David has a permanent impairment, he is not considered permanently disabled – this technicality does not mean that he does not meet the definition of disabled under the ADA. In the eyes of David’s employer, his work status is a workers compensation issue. Wrong – this is where the wheels come off the ADA accommodation car and the employer is sailing toward a costly reality check.

In our example, the ADA exposure started when David’s employer was notified that he had restrictions that would limit his ability to perform his regular job. The key reminder for employers, the ADA exposure can start with the injury itself because the injury can meet the definition of disabled under the ADA – example: an amputated arm.

Another key point, the workers compensation system, mandates that treating physicians address the employees ability to return to work and we further ask the doctor to address the employee ability to do their regular job, we then ask the physician to address permanent restriction and we get these notices routinely – yet we don’t have a plan to evaluate accommodations that will result in injured employee retention and successful reintegration into the workforce. I am constantly amazed by the disconnect that occurs when employers are clueless about the information sitting in their files.

In essence, workers compensation is the gateway to ADA accommodation. Employers incorrectly assume that the workers compensation system will protect them from ADA litigation – surprise, surprise, it will not! In fact, the workers compensation system does little to explain the exposure and they will not provide employers with a defense for inadequate ADA policies – the two systems are independent and co-dependent on each other.

During fiscal year 2008, disability discrimination charges rose to 19,453 – an increase of 10 percent from the prior fiscal year and the highest number of disability charges filed with the EEOC in 14 years. One factor that may be contributing to this rise, the economy. As the economy forced employers to make adverse employment decisions, many did not equate terminating injured employees with ADA litigation.  

We know the wrong way – so what is the right way to handle the ADA Exposure?

The solution is simple injured employees can return to work if employers make a valiant effort to bring them back to work. Your injury management program should be cohesively blended into your regular employment practices. When evaluating job accommodations, employers must focus on ability, not disability – what can the employee do and how can we keep them working?

Remember, the workers compensation system is built to provide notification of injured employees medical and work status after each doctor’s visit. These notifications address the employee’s ability to return to work with or without restrictions. If the employee has restrictions, the restriction may eventually affect the employee ability to perform the essential functions of their pre-injury job – creating the ADA exposure. You have to have a plan before this happens. You must evaluate each injury independently and determine if the injured employees qualification for ADA protections. Then you must review the pre-injury job description, evaluate the essential functions or duties required to do the job and you must complete the interactive process with the injured worker to determine how you can accommodate them in the workforce. Is there request for accommodation reasonable and can we provide it? Without these key ingredients more employers will find themselves on the EEOC radar.

If you are still struggling with this process – there is fantastic information available at the Job Accommodation Network’s website – http://www.jan.wvu.edu/

It’s unfortunate for Sears that they had to be the one to turn the return to work light bulb on for other employers. Employers now have 6.2 million reasons to evaluate their workers compensation return to work polices and simultaneously evaluate how they comply with the Americans with Disabilities Act.

Press Release: National Return to Work Week is an opportunity for everyone involved in the workers compensation and disability management process to demonstrate their commitment to helping injured, disabled or ill employees stay-at-work or return-to-work. This week highlights the importance of employee retention and employee ability. What can the employee do? Verses what they can not do – Disability does not mean no ability.

“The stakes have never been higher” said Margaret Spence, founder of National Return to Work Week. “Every day we hear disturbing information about layoffs and downsizing – when company’s layoff employees, what happens to employees who are injured on the job or have illness that prevent them from find new employment. What do we do with these individuals? Are they just forgotten?”

Annually, 4.1 million employees sustain occupational injury or illness – 1.2 million have lost work days directly related to their injury or illness. Employees who are off work for more than sixteen weeks seldom return to the workforce. Employees with permanent work related disabilities are more likely to become unemployable. The unemployment rate for people with disabilities is 14.0 percent according to the Office of Disability Employment Policy. These statistics prompted, Margaret Spence to submit National Return to Work Week to Chase’s Calendar of Events last April, to her surprise it was accepted and added to the 2009 Calendar.

From a Workers Compensation standpoint – when employees are injured in the workforce there is a monetary reward mindset, a feeling that money is better than a job.  This is the only system that rewards employees to stop working – even when they are capable of returning to some employment. “We allow people to join the ranks of the unemployed for the price of a pick up truck” says Spence.

While most employees who are injured immediately return to work and continue their regular job – there are far too many who we settle out of the system. These employees either move on to a new employer, sometimes repeating the cycle, or they move to the ranks of the unemployed. There is also another subset that move into the Social Security System and become permanently disabled – adding a new burden to an already over taxed system.

From a non-work related disability standpoint – once an employee becomes eligible for long term disability, there may be few options to help the employee return to gainful employment or to encourage the employer to explore job or task modifications that would allow the employee to return to work in some capacity.

“Are there other options? says Spence. “Why can’t we make an effort to implement return to work programs that retain injured or ill employees rather than discarding them from the workforce?” she added “even in a challenging economic environment return to work programs are vital. Employers are not conducting a thorough evaluation of the long-term cost of workers compensation and disability coverage in their termination or retention decisions. Many companies may emerge from the economic downturn is dire financial situations because of the decisions they are making about ill, injured or disabled employees today.”

National Return to Work Week 2009 will bring together employers, employees, treating physicians, vocational experts, insurance, legal professionals and disability providers from around the country to share best practices and exchange information to increase return to work opportunities for ill, injured and disabled employees. Together we can highlight the importance of Return to Work, Stay at Work or Transitional Duty Programs.

The NRTWW Motto – Disability does not mean no ability – injured, ill and disabled employees should not be discarded from the workforce. Nor should we create a system that rewards and allows them to discard themselves from the workforce.

For details and more information about National Return to Work Week, becoming a partner, or participating in a our virtual conference, please visit www.nationalreturntoworkweek.org

About National Return to Work Week – This week highlights the impact of not implementing proactive stay-at-work or return to work programs for ill, injured or disabled employees. It is a full week of national educational and best practices presentations aimed at bringing disability management to the forefront of the national employment retention discussion. National Return to Work will be celebrated annually during the second week of May. Visit our website: www.nationalreturntoworkweek.org for more information and to get involved.

About Margaret Spence, CWC, RMPE – Margaret is the author of From Workers Comp Claimant to Valued Employee – and the founder of National Return to Work Week. She is an injury management expert on a mission to help employers understand the importance of implementing proactive return to work or stay at work programs. Learn more about Margaret Spence, visit her website at www.margaretspence.com

Chase’s Calendar of Events – Brothers William D. Chase, a journalist and publisher from Michigan, and Harrison V. Chase, a university social scientist from Florida, founded Chase’s Calendar of Events in 1957. Chase’s Calendar of Events today is the most comprehensive and authoritative reference available on special events, holidays, federal and state observances, historic anniversaries and more. Each spring, thousands of new entries are submitted to join the more than 12,000 items that make up each year’s book. Each event listing (where applicable) contains contact and mailing information. There is no charge to be listed in Chase’s. Each new edition appears in late September preceding the year in question. Visit their website – www.chases.com

The key component that is often missing from a company’s Injury Management Program is a written Return-to-Work Policy. Many injured employees have been released by their treating doctors to return to work but their employers are reluctant to allow them back into the work environment. In these instances, the insurance carrier has to pay benefits to an employee who has approval to work but is sitting at home with nowhere to go. The major factor that contributes to this reluctance is a lack of a clear policy with specific procedures that can be applied immediately after an accident that will result a positive return-to-work experience.

Lost Work Days – is a billion dollar crisis hidden in the American workforce! The National Safety Council estimates that there are more than 80,000,000 lost work days due to occupational injuries or illness. The Bureau of Labor and Statistics indicated that, 1.2 million employees lost an average of seven days due to their injury or illness.

Recently, I met with a client who wanted to reduce the number of injuries at their job site. Instead of totally focusing on the number of injuries, I asked him to bring the company’s Occupational Safety and Health Administration – OSHA 300 log to the meeting so we could calculate their Return to Work Ratios—the number of lost days, the number of restricted days, the number of injuries, and the number of employees who never returned after an injury.

For calendar year 2006, this employer had 61 injuries that resulted in 1769 lost days, 255 restricted days. Yes, the frequency of injuries was huge, but it was staggering to look at the lost days—more than four years of productivity had been lost by employees who did not return to work after an accident.

We then randomly selected 5 of the employees who had been off work for more than 21 days. We reviewed the medical documentation associated with each worker to determine if these employees had a valid reason for being off work beyond the first seven days. The review showed that on average all 5 employees had been released by their treating physician to return to work—with limitations—by the second week after their injury. The review highlighted the fact that the employer had not entertained the idea of identifying a job that would accommodate these employees. These employees were allowed to remain off work until the physician released them to return to full-duty work.

I find that employers seldom attempt to quantify the impact of allowing an employee who could return to work to stay at home. If employers ask one simple question—What is the cost of leaving this employee at home?—they might not be so quick to say, “We have nothing available.”

What contributes to this off work crisis?

Well, there is a long list: insurance carriers, medical providers, insurance agents, ancillary insurance providers, injured employees, attorneys and employers.

Before we can address implementing a proactive return to work program we have to evaluate the system that created this crisis. The workers’ compensation system was intended to be self executing, easy to navigate and easy to administer – instead it is riddled with loopholes, litigation, layers of rules and regulations and it does not provide employers with adequate guidelines or resources to understand the importance of implementing return to work policies.

When companies purchase workers’ compensation insurance coverage they are given a large packet that tells them how to file a claim. Stacks of Notice of Injury Forms and great resources to call the claim in – generally there is limited or no information about implementing a return to work program. For most employers the first time they hear return to work is from the adjuster managing their claim files. Why does the return to work process start at the adjuster’s desk and not during the underwriting process?

If you evaluate workers’ compensation from a pure financial standpoint, there is no real incentive to educate employers so they effectively manage their injuries. If employers opt to keep the employee out of work, the insurance carrier pays the lost wages or indemnity benefits until the employee is released to full duty or the employee exhausts the state-mandated benefits or until they settle the claim. Indemnity payments impact the experience modification, which increases the workers’ compensation premiums, ultimately driving up the employers cost of doing business.

Everyone benefits in this system except the employer – unfortunately most employers still don’t grasp this concept.

Employers do not realize the amount of control that they have over the direct and indirect costs of workers’ compensation. The workers’ compensation system was built to benefit employers who implement injury prevention programs by allowing them to pay lower premiums. Most employers do not effectively control their costs, and some employers put their entire businesses at risk by not implementing programs that reduce or eliminate injuries and reduce lost work days.

Several years ago, when I first stared my consulting practice, I received a panicked phone call from an insurance agent who advised me that his client received a Notice of Cancellation and that he had sixty days to find them new coverage. Apparently, the company had numerous accidents, large settlements and they had made no corrections after several visits from the insurance company’s loss control representatives.

The agent advised me that he had already called several underwriters to find out if they would be interested in issuing a quote for this client. After he relayed the fact that the company’s paid-in premium amount was $280,000 and the claims paid-out total was $850,000 the underwriters broke into hysterical laughter. No one was interested in providing workers’ compensation coverage for this company. The client faced the real issue of closing his business because he could not secure coverage.

After meeting with this employer, I quickly realized that their injury management program was a cycle: injury, terminate, settle—the revolving door that had earned them their Notice of Cancellation.

Most companies focus their efforts on implementing safety procedures and they hope that their employees will follow directions and not have any injuries. In reality, employees are injured every day, so the key issue is how to eliminate or lower workplace injuries while simultaneously reducing the number of lost work days for injured employees. The solution is having a plan that addresses total injury management by reducing or eliminating injuries, reducing or eliminating lost work days and reducing or eliminating the readiness to litigate and settle workers’ compensation claims. It is a total package.

Reducing or eliminating lost work days is a critical piece of any injury management program. Employers are not in a win-win situation when it comes to workplace injuries. If you leave the employee at home, the insurance carrier pays them to be there. This, in turn, affects the amount of money you pay for premiums. If you refuse to bring the employee back to work you may be in violation of the Americans with Disabilities Act – ADA. If you bring the employee back to work in a nonproductive light-duty position that has them counting paperclips, you are paying state and federal taxes as well as benefits for an employee who is not contributing anything to your bottom line. The solution – implementing policies and procedures that facilitate injured employees returning to work as productive members of your team.

An effective injury management or return to work program starts before an injury happens, not on the day the employee files the First Report of Injury or Illness. When treating physicians issue light duty restrictions, employers must have a well defined plan in place to bring the employee back to work immediately. Reality, most employers do not have effective return to work policies or procedures.

Thank you for subscribing to our weekly newsletter. You will receive an email from us with a link to the newsletter page each week.