Have you considered implementing an official return-to-work program for injured employees? Doing so can have benefits for both the employee and the employer, but there are also questions to consider:
- What language is required in a return-to-work agreement?
- What should you do if you created a position that meets the injured employee’s work restrictions and offered it to the employee, but the employee refused it?
- Can you limit the amount of time a person works on work restrictions and release them if they exceed it?
Don Dressler outlined answers to these questions and more in a recent CER webinar. Here are his answers.
Q. Are bona fide return-to-work agreements useful?
A.Absolutely. What we’re dealing with, first of all, is expectations of all parties involved. When employees know what they’re supposed to do (as opposed to having ambiguity as to whether they’re expected to come back immediately), it makes the process smoother.
Q. What language is required in a return-to-work agreement?
A.They need to understand that if they have an offer to return to work and they don’t take it, that they do lose their workers’ compensation benefits as well. They also won’t be eligible for state disability insurance because they had the opportunity to have pay. We don’t want the worker to be caught in this unpaid situation—we want them to be paid! And we want them to be taken care of.
Education is an important component to this. It’s not just a return-to-work agreement, it’s an education process. It starts with the new hire process: it should be in the employer policies or handbook and it should be reminded to the employee at the time of injury.
Q. Can a telephone consult with a doctor be considered appropriate initial treatment for a non-severe injury?
A.You really have to know the injury and the circumstances to answer this. However, having a doctor evaluate a person by telephone may be an option. What’s most important is that the employee gets their situation evaluated by a knowledgeable medical professional, and that they receive appropriate follow-up care.
Q. We are in New York and have an employee who has a workers’ compensation injury. He has work restrictions from the doctor. We created a position that meets the restrictions and offered it, but the employee refused. Now what?
A.Next is to be sure that you put the offer that falls within the restrictions in writing, and inform the workers’ compensation adjustor. The workers’ compensation carrier has forms that will be issued that notify the employee that they will be denied their temporary disability pay. From a practical standpoint, it’s advisable to make the offer at least twice to be sure that the employee understands that refusal to come back means they will lose their temporary benefits.
It also means that they are refusing to come in to work, which could be putting their job at risk since they are not honoring a requirement of the employer. Make sure the workers’ compensation adjustor has all of the documentation of all of these conversations. You’ve done all you can at that point. Some people essentially terminate their own positions in this way.
Q. Can you limit the amount of time a person works on work restrictions—and if they exceed that time are they released from the company and offered retraining?
A.We used to talk about time limits to modified duty. The problem is that it’s very tough to impose such automatic limits without possibly running afoul of the Americans with Disabilities Act. What is appropriate in the circumstances should be assessed on an individual basis.
There are two sides. 1) What’s an unreasonable burden on the employer? (How many employees do you have? What’s the nature of the job and the restrictions? What are your options?) 2) What’s really happening with the employee? Are they following medical guidance and directions? Are they making progress in recovery? What is the forecast for full recovery?
My strongest recommendation is to not put an automatic limit on modified-duty jobs. Be proactive and work with the medical provider and the employee on progress and expectations for the future. The two sides need to be balanced (burden versus recovery).
Q. Can you mandate an employee to accept modified duty as long as the new job functions are within their restrictions?
A.Well, the mandate is: either you do it or you don’t work here anymore. If you’ve offered a return to work that meets their restrictions and they refuse it, they will no longer be covered by workers’ compensation or state disability benefits. Additionally, they will be in a situation where they’re refusing to report for duty – which is the equivalent of voluntarily quitting (no call, no show). In the end, that is the result.
Q. Can an employer restrict someone who has work restrictions from working overtime? Is it a good idea to do so?
A.In terms of work restrictions and overtime, there is a process called work hardening. If a person has an injury, you should work with the treating physician to determine the best way to get him or her back to being able to perform the full range of duties and regain all function. Sometimes, putting them back into a full workload isn’t the right thing to do. But this is personal. Consider the best way to get them back up to speed. It’s really an individual medical decision.
The above information is excerpted from the webinar “Return to Work: Building an Effective Program That Gets Injured Employees Back to Work Quickly.” To register for a future webinar, visit CER webinars.
Don Dressler of Irvine-based Don Dressler Consulting has been working with safety recordkeeping for over 15 years as the head of an agricultural trade association’s safety and loss control staff and since 2003 as a safety and human resources consultant and attorney. Dressler focuses on safety, employment and human resources issues, accident investigations, OSHA compliance and workers’ compensation.
I’m curious about how employees react to RTW programs? Do they welcome the plans, finding them reassuring, or do they resent them, finding them to be high pressure or coercive?