From the ADA to returning soldiers to work
Earlier this month, the country celebrated it’s 232rd birthday. We celebrated with fireworks, picnics, and parades to honor our veterans who have fought in wars past and the soldiers who are currently abroad fighting for our country. This month also marks the 18th anniversary of the Americans with Disabilities Act (ADA). What do those two things have in common? To answer that question, we introduce you to Richard Pimentel.
After coming back from the Vietnam War with significant hearing loss, Pimentel became an unlikely hero in the “silent” civil rights movement, which focused on affording people with disabilities the same rights as those without, and his work would become a cornerstone for the creation of the ADA. Eventually, he naturally progressed to the workers’ compensation field.
When soldiers began returning from Desert Storm suffering from new sorts of battle injuries — Posttraumatic Stress (PTS) and traumatic brain injuries (TBIs) — he began to think about using traditional return-to-work and workers’ comp processes to reintegrate those wounded soldiers. Now, with soldiers returning from Iraq and Afghanistan with PTS and TBIs in record numbers, Pimentel sees an even greater opportunity for employers to use the tools already in their workers’ comp and return-to-work toolboxes to make a place for these wounded warriors in the workforce.
A disabled American returns from war
When Pimentel graduated from high school, he was faced with a common dilemma. While his grades were good enough to earn him a spot at his chosen university, they weren’t good enough to earn him a scholarship. He chose to go into the Army so that he could earn money for school. The war in Vietnam was raging, and he reminisces, “The only way to ensure you could go to college if you didn’t have money was to go into the Army. . . . We called it the â€˜If they don’t kill you, you get to go to college lottery.’”
Pimentel didn’t get killed, but he did suffer a debilitating accident on the battlefield. He returned having lost half his hearing and suffering from ringing in both ears. Still ready to move forward with his dream of becoming a public speaker he began to feel the discrimination that the disabled face when trying to enter the workplace almost immediately. “The VA decided I was too deaf. None of the rehab people had ever seen a successful deaf speaker,” he recalls.
A new civil rights movement is born
When Pimentel was told that he wouldn’t be able to pursue his lifelong dream of public speaking because of his disability, the seed that would eventually grow into the ADA began to germinate. “I realized there was no â€˜rights’ movement for people with disabilities equivalent to the women’s rights movement, the African-American rights movement, the war movement. People with disabilities were denied a lot of rights at the time,” he says. “You could hang a sign outside your door that said â€˜Disabled people need not apply.’”
One day after Pimentel returned from Vietnam, he noticed just such a sign in the window of a store. It read, “We reserve the right to refuse service to anyone.” He recalls, “I thought, how can you reserve a right you never had? Maybe you can refuse someone who is unruly or rude, but you don’t have an inherent right to refuse service to someone for reasons that are just wrong.”
When Pimentel’s friend Art was refused service because of his disability, he joined the civil disobedience movement and went to jail because of his peaceful protest. That experience helped redirect his path in life to the fight for disability rights, what he calls “the silent civil rights movement.”
“I had noticed all this happening, but it was tolerable. I noticed it and thought it was wrong, but I was on my way to being a businessman,” Pimentel recalls. “After getting arrested and seeing my friends from Vietnam not being able to find jobs, a situation that I was willing to tolerate suddenly became a situation I was unwilling to tolerate. I decided to go into the field of trying to help people with disabilities get jobs and try[ing] to work with employers.”
Reasonable accommodations: disabled Americans in the workforce
Pimentel joined Milt Wright & Associates, a publishing, training, and consulting firm focused on disability management, job creation, and employment resources. There, he was a key author of the Windmills program, which was designed to change the attitudes and behavior of supervisors who hire and promote employees with disabilities and which Pimentel calls “part of the early energy of the disabilities movement.”
Pimentel trained HR representatives about integrating the disabled into their workforces everywhere from Fortune 500 companies to top government agencies. He helped create the concept of reasonable accommodations and was a driving force in the creation of the bill that would become the ADA.
For years, Pimentel taught employers how to (and why they should) hire people with disabilities and taught the disabled how to join the workforce. That led to a sort of natural progression into the workers’ comp field.
“Every time I tried to get people with disabilities jobs, employers would say, â€˜Oh, I don’t want to hire him. What if he hurts himself?’ or â€˜Why do I want to hire your people with disabilities? I don’t know what to do with my own,’” Pimentel recalls. “I knew I would never get these wonderful young people with disabilities jobs if the employers didn’t know what to do with people with disabilities that they already had.”
On-the-job vs. off-the job injuries
Pimentel sees the same basic principles at work whether he is showing an employer how to integrate a new employee with a disability into its workforce or how to reintegrate and return to work an employee who has been injured on the job. In both instances, there are capable workers who want to work but just need some sort of accommodation to do their jobs.
“Companies that compartmentalize injured on the job versus injured off the job need to start looking at the whole issue of employee-related disability expenses and take a literally integrative and universal approach,” Pimentel says. “The cost of long- and short-term disability for the average company far exceeds the workers’ comp costs.”
Pimentel asserts that the “HR costs” (indirect costs that include overtime, hiring and training temps or new workers, and recruiting) of allowing an employee to remain out on disability versus returning him to work with an accommodation is “almost dollar for dollar. If you think your comp bill is expensive, your HR bill is expensive too, but no one’s yelling about it because it’s folded into all these other categories.”
Pimentel warns that throwing up your hands and giving up on a disabled employee not only affects your bottom line in HR costs but also sends a bad message to your current employees. He puts it succinctly, “Don’t tell me you’re responsible enough to recycle your paper but not your people.”
Injured Americans returning from war
Pimentel says the same theories should apply to soldiers who are returning from Iraq and Afghanistan with unprecedented injury rates. He notes that TBIs have been described as the “injury de jour of the Iraq war,” and they are causing serious headaches for employers. In addition, a “truly significant” number of soldiers are returning with PTS and/or amputations.
“We have laws that if one of your employees is called to duty, when that employee comes back, he should go back to his old job and not lose seniority, and that’s great. But where that whole process tends to break down is when that employee of yours comes back disabled,” Pimentel says. “So we’re getting a lot of vets back who are saying, â€˜Where’s my job?’ Suddenly the employer is astounded, â€˜What do I do? I thought the VA would take care of you.’ The VA is good about medical treatment, but it isn’t good about getting people jobs after.”
For that reason, Pimentel sees the reintroduction of soldiers wounded in the Middle East as the new fight for the disabled in the workplace.
Injured warriors on workers’ comp?
Pimentel suggests using the same tactics to integrate that soldier back into the workplace with the same strategies and accommodations you would offer someone who was injured on the job. “If you want to be philosophical, that’s your injured worker. You aren’t liable for that injury they suffered in the war, but it’s still your worker. And they were doing something that’s pretty important. A lot of companies will bring back the industrially injured workers but we don’t bring back the nonoccupational (nonoc) [ones],” Pimentel says. “A soldier has almost got one leg in the industrial and one leg in the nonoc at the same time. There may not be a legal reason to put them in your workers’ comp return-to- work program, but there’s a good philosophical and ethical reason: Because your return-to-work program will be the best system to expedite bringing somebody back. Use it! Especially if you don’t have a good nonoc return-to-work program.”
Pimentel notes that especially with PTS, many of the returning soldiers won’t need permanent modifications, just some sort of transition period. “Even if there’s nothing wrong with you, you are going to need a transitional period after 18 months in that place.”
Pimentel says that employers must “find the mechanism in their own organizations that they can plug these people into that will help expedite their return,” he says. “Then, the employers need to educate themselves or be educated on how to bring someone back with PTS. I’m not asking employers to treat PTS, I’m asking them to understand enough about it to bring someone back and work with them.”
He suggests that if you have an individual who you are trying to get back to work — with that person’s permission — you should talk to his counselor to see what he needs. “Everyone’s not the same. Those with PTS have a sort of hot button that will put them into that mode, but everybody’s hot button is different,” he says. “When I got back from Vietnam, when I would walk through a park or downtown for over a year there was never a moment when I was walking somewhere that I couldn’t show you where I would jump if â€˜they’ started shooting. Every second of my life for a year I knew where I was going to jump if the bombs went off.”
Pimentel would also like companies to remember that PTS isn’t just “Oh my god, I think I’m back in war.” “It’s not like ringing a bell to an old drunk boxer and he starts swinging,” he says. “We are talking about relationship problems, high divorce rates, possible domestic violence, substance abuse problems, all of this comes from that.”
For that reason, companies that have any kind of employee assistance program (EAP) or in-house counseling program should let their returning soldiers know about it. “You need to let them know if they use it, it will be OK. If someone comes back and says, â€˜I’m not doing good, I’m not getting along with my wife,’ the workers’ comp mentality can be â€˜Oh, that’s not my problem.’ After these kids take off their uniforms, the PTS is still a VA problem, but the family isn’t. There’s almost no auxiliary counseling services for the family once they are no longer in the military, so we are going to depend on employers to recognize these problems.”
Pimentel says that if your company doesn’t offer some kind of resources with an EAP, you should be able to refer them to resources in the community that help. “This is part of the support. This is the PTS equivalent of buying them the ergonomic chair. It’s the same thing; it’s just different,” he explains.
Warriors make good workers: make workers’ comp work for them
Besides the philosophical and ethical reasons for finding a way to integrate disabled returning soldiers into your workplace, Pimentel offers a more practical one: They’ll make good employees. “The kind of person that would volunteer to do this and then spends 12 to 18 months and comes back, sure they may need polishing and time to readjust, but you just got back a much better employee than you sent,” he says. “You know they have dedication, adaptability, and diligence.”
That goes for members of the National Guard and other armed forces who aren’t disabled but whom employers may be wary of hiring because of the uncertainty that comes with not knowing when or for how long they may be deployed. “Five years ago, six year ago, 10 years ago, if you had an employee who was a member of the Guard or the reserves, most employers considered that to be a quid pro quo sacrifice for the good of the country. They never imagined that they would have employees who were gone more than they were there. They never imagined that the Guard and reserves would be pulled for 18 months’ duty, sent home, and then pulled for another 18 months’ duty,” Pimentel reasons. “One of the things that we’re seeing now is that there are men and women who are members of the reserves who are not disabled, but employers don’t want to hire them because they will be gone too much. The nature of the Guard and the reserves has changed dramatically with this war. We’ve never seen this before. Employers are saying, â€˜Wow, I don’t want to hire someone who in five years is going to be gone three of them. I can’t do that.’”
As a result, members of the Guard and reserves are having a difficult time finding jobs. Pimentel argues that employers must change those attitudes, “Otherwise, people who are willing to put their lives on the line for us won’t be able to get a job because they are willing to sacrifice. How fair is that? Now, people won’t go into the reserves or Guard in the first place because they won’t get a job.”
Pimentel says that the only way to change that is the same solution for integrating disabled soldiers back into the workforce: Employers must come up with a strategy. And that’s where workers’ comp comes into play. While Pimentel admits that it’s not inherently a workers’ comp problem, he states, “Worker’s comp knows how to get people back to work. We know about transitional employment. We know about moving someone from modified duty to permanent duty.”
When employers lament that their employees who are going overseas to fight aren’t returning in the same mental and physical condition, Pimentel responds, “You could not be more right. These employees are not coming back the same way you sent them. They are coming back better — whether they have a disability or not.”
“Now,” Pimentel says, “the question we have to ask as a society, as a business that lives in this society and is able to thrive because of this society that we have is, â€˜Have we improved as much as they have? Are we willing to do what it takes?’”