JAN is a service of the U.S. Department of Labor’s Office of Disability Employment Policy. 1 Stay-at-Work/Return-to-Work Elisabeth Simpson, M.S., CRC, JAN Lead Consultant Lisa Mathess, M.A., JAN Senior Consultant

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 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) 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 Non- occupational 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 7 EEOC Enforcement Guidance: Workers Compensation and the ADA 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

12 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 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

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 Administrative modifications for RTW:

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 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 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  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

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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

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Questions? AskJAN.org 47 Stay at Work/Return to Work