We had very successful webinar recently on the New ADA Return to Work Interpretations. There were many questions from the audience. Find below the responses to the questions related to the Interactive Process given by Aaron Konopasky, Senior Attorney Advisor, US Equal Employment Opportunity Commission, and Michael Stack, Risk Consultant, Co-Author Your Ultimate Guide to Mastering Workers Comp Costs
A follow-training on How to Coordinate Return to Work with ADA Compliance initiated additional questions:
- ADA – If light duty cannot be accommodated, should FMLA run concurrently?
- ADA – Do All Work Comp Injuries Fall Under the Americans with Disabilities Act Amendments Act (ADAAA)?
- ADA – Is it against the law not to hire a person with a disability for a physical position?
In Workers Compensation, many injured workers do not feel as if they can return to work on light duty. How does this dialogue happen when they are opposed to Return To Work?
If the employee has accrued annual or sick leave, then he or she has the right to use it just like any other employee. And if the employee is entitled to FMLA leave, then the employer would need to provide it.
If the employee has no leave available, and everyone agrees that the return-to-work assignment is consistent with his or her medical needs, then the employer can require the individual to return. It would be just like requiring someone who hasn’t been injured to come to work, even if he or she would prefer to stay home.
However, you are describing a situation in which the employee doesn’t agree that the return-to-work assignment is consistent with his or her medical needs. If the medical documentation you have so far doesn’t address the issue, or if the employee disagrees with the medical doctor, then the employer can require the employee to provide documentation in support of his or her position, or request an independent exam. The employee has a duty to participate in the interactive process as well.
Eventually, the employer will have to make a decision as to whether the person can do the proposed assignment. If the employee can, in fact, do the assignment, then the employer can require the employee to return to work.[Publishers Note: The best way to ensure compliance with a return to work program is to communicate your policy before an injury occurs, then reinforce the process at the time of injury. Most employees have not had a previous workers compensation injury, so they don’t know what to expect. A simple employee brochure outlining your policy, the employers’ role, and the employees’ role is an effective tool.]
What if the employee doesn’t want to return-to-work, but wants to be out of work?
Of course, if the employee has accrued annual or sick leave, then he or she has the right to use it just like other employees. And if the employee is entitled to FMLA leave, then the employer would need to provide the required leave. But if the employee has no leave available, and if everyone agrees that the return-to-work assignment is consistent with the employee’s medical needs, then the employer can require the individual to return. It would be just like requiring someone who hasn’t been injured to come to work, even if he or she would prefer to stay home.[Publishers Note: After a transitional duty policy has been properly communicated to clients, ongoing communication with the injured worker is equally important. The assumption that an injured employee wants to be out of work may or may not be accurate. Best practices for employers dictate accompanying the injured worker to receive initial medical treatment, phoning the day after the injury, and meeting weekly until maximum medical improvement. This demonstration of care and ongoing communication can uncover and overcome hurdles to return to work. This process will also provide complete information to make a decision regarding terminating an individual’s future employment at the company.]
Aaron Konopasky is a Senior Attorney-Advisor in the ADA/GINA Policy Division at the U.S. Equal Employment Opportunity Commission (EEOC) headquarters in Washington, D.C. He assists the Commission in interpreting and applying the statutes it enforces, and participates in drafting regulations, policy guidance, and other publications.
Dr. Konopasky joined EEOC after receiving his J.D. from Stanford Law School. Prior to law school, he received his Ph.D. in philosophy from Princeton University and served as an adjunct professor of philosophy at Rutgers University, Tulane University, and the University of New Orleans.
Michael B. Stack, Principal, Amaxx Work Comp Solutions. He is an expert in employer communication systems and helps employers reduce their worker’s comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool. He is co-author of the #1 selling book on cost containment, Your Ultimate Guide To Mastering Workers Comp Costs www.reduceyourworkerscomp.com. Contact: firstname.lastname@example.org.
To Learn Step-By-Step instructions to create your Return to Work program, Purchase Your Ultimate Guide To Mastering Workers Comp Costs.