Whenever an employee has to miss work due to an injury that was covered under workers’ compensation, it is in everyone’s best interest to get the employee back to work as quickly as possible. Implementing a good “return-to-work” program allows employers to maximize employee productive work time by returning an injured or previously ill employee to work as soon as there is no direct threat to the health and/or safety of the employee or others. Employers do this to retain employees who have been released to return to work but are unable to perform the full range of usual and customary duties of their job class at the time of the injury or illness.
When an employee is completely off work for a short period due to an injury or illness, it is referred to as temporary total disability. From there, several scenarios can happen:
- The employee may be able to return to work without restrictions.
- The employee may be able to return to work, but may have some restrictions that are temporary.
- The employee may be able to return to work, but there may be some permanent restrictions.
- The employee may be permanently disabled and unable to return to work (and the classification would be changed to permanent instead of temporary total disability).
Workers’ Compensation Realities: Creating Effective Return-to-Work Programs
When the employee is returning with duties that are temporarily modified due to restrictions (before they have reached maximum medical improvement), this is classed as temporary partial disability. When offering employees temporarily modified or alternative work, try to keep their schedule as similar as possible to their original role.
If the employee turns down such an offer, this can affect their eligibility for workers’ compensation pay. However, if the temporary modification results in the employee not earning their regular wages, he or she may be entitled to have that wage loss paid for under workers’ compensation in California.
Once an employee has reached maximum medical improvement, it must be determined whether they can now be released to full duty or whether they will remain on permanent restrictions. Employees who are permanently precluded from returning to their usual and customary duties may be entitled to vocational rehabilitation services under the workers’ compensation policy in California. Alternatively, the employer can offer the employee a permanently modified job which must meet the following criteria:
- It must fall within the restrictions that were set by the physician.
- It also must be within 85 percent of the employee’s regular earnings at the time of their injury.
- It must be within a reasonable commuting distance, which typically means within approximately the same commuting distance the employee previously had.
- It must last at least 12 months.
Since this return-to-work process has become a situation where the employer is making an accommodation under the Americans with Disabilities Act (ADA), employers should act accordingly and use the interactive process. “Make sure you understand what California’s interactive process means. And you may want to seek legal assistance with that from your labor attorney. That is something that workers’ comp specialists aren’t going to be able to help you with, but that’s definitely something you want to have a good understanding about.” Cathy M. Divodi advised in a recent CER webinar.
Even though bringing employees back to work as soon as is appropriate is generally beneficial, establishing a more formal and detailed return-to-work program can have pros and cons. Be sure to assess your program to ensure it is current, ensure the job duties are current, and ensure you’re willing to be bound by all of the policy components.
“Have your labor attorney review your return-to-work policy and advise you as to how you want to carry that out and how much of that you’d want to include in your employee handbook.” Divodi advised. Once you have a policy in place, inform your employees and instruct your key managers on how to implement the program.
The above information is excerpted from the webinar “California Workers’ Comp 101: How to Manage Your Program in a Challenging Environment.” To register for a future webinar, visit CER webinars.
Cathy Divodi is the owner of Artemis Claims Consulting and has over 20 years in workers’ compensation claims management. She is a workers’ compensation hearing representative and has a wide range of specialties including: expertise for insured and self-insured employers, reviewing claim reserves and analyzing losses, conducting claim audits, training on reporting of claims, early return-to-work programs, abuse/fraud and first-aid programs, expertise in workers’ compensation litigation and more.