TRANSITIONAL OR LIGHT-DUTY WORK

Perhaps the most important and effective thing an employer can do to reduce costs is to develop an aggressive return-to-work program. Making such work available through transitional or light-duty work is one way to help the employee become a productive member of the company again.

Before compensation costs and premiums increased so dramatically, many employers had a policy of not letting employers go back to work until they were fully recovered. For many employers, the paperwork and other costs involved with tailoring a job to a person with an injury were just not worth it. Now, however, letting someone stay out on disability is so costly that keeping out employees who could make any contribution to the company is foolish.

Identify transitional or light-duty work. Transitional or light-duty jobs should be identified within the organization before there is an accident. They should be designed with the goal of making the workers in those jobs contribute something valuable to the company. For example, a fabric company that had been throwing away scraps of cloth discovered that if the scraps were sorted, some could still be used. When workers who were returning to work with restrictions were given the job of sifting through the scraps, the result was a profit for the company, even without considering the savings in workers compensation benefits.

Light-duty assignments are temporary. It should be emphasized, however, that light-duty jobs should be offered to the employee as a temporary arrangement, and a fixed time limit for the job should be agreed upon at the outset, after consultation with the employee’s physician or therapist. After the employee has worked at the light-duty job for the agreed-upon length of time, every effort should be made to return the employee to the preinjury job or another suitable job within the company.

If just to improve an employee’s mental state, light-duty work should always be offered. Even if an employee can only work part-time or half-days at first, light-duty work will get injured employees out of the house and may convince them that return-to-work is possible.

A sample letter offering employee transitional work

Dear (Employee Name):

We were sorry to learn of your accident. We hope that we have been responsive to your needs since your injury. We have learned from your doctor that you have progressed to the point of being able to return-to-work in a transitional job. The doctor has told us exactly what he/she feels you can do and we have matched your physical abilities to a job.

Attached is a copy of the job you will be doing for ______ hours per day until the physician releases you to further work. No overtime is available to employees on transitional work. The goal of this period of time is to allow you to ease into your regular duties as you recover.

Attached is a copy of the restrictions your physician has placed on you. Please keep these with you at all times when you are working to remind yourself or notify others of specific activities that you should not be doing.

Your transitional job will be available for a maximum of ______ weeks. It is hoped that you will be able to return to your former job sometime during this period. If you are unable to do that, we will work with you to determine what additional services you need to be able to return-to-work.

The hours of your transitional job will be from ______ to ______. Please report to ________ on ______. Please call me at (supervisor’s phone number) if you have any questions about this job offer or our transitional duty program. We are looking forward to having you back with us.

Sincerely,

Your supervisor

(Attach necessary forms.)

Light-duty work and the physician’s role

In its consultation with the employee’s doctor, the employer should find out how long the employee needs to stay in a light-duty job. As soon as possible after the injury, the type of light-duty job and how long light-duty will last should be settled with the employee.

A good analogy I ve heard is to treat employees like sports stars, comments Mike Levin, a risk management consultant with Tillinghast. When you hear of sports stars who have been injured, what happens? Within 24-48 hours their treatment has been laid out, they know exactly when they re going to come back, what their temporary light-duty job is going to be (for example, they re going to be a utility infielder for a while, then they ll go back to being full time); everything is all settled.

Doctors familiar with the job can offer suggestions. If a company is referring a large number of injured workers to the same doctor, that physician may help you come up with creative solutions about what to do with returning workers. The physician may visit the plant in order to observe what the different jobs entail. If this is not feasible, a manager can make videotapes of employees at work in order to show the physician or physical therapist exactly what someone would need to do in order to do the job.

Seek other medical assistance. If the physician your company uses is not helping you as much as you would like concerning the rehabilitation of injured workers, perhaps you need to locate a doctor with training in occupational medicine, rehabilitation, or ergonomics. You may have to look around in order to locate such a doctor, according to Dr. Harold R. Imbus, a Greensboro, North Carolina, physician. Most company doctors or family physicians will not have the necessary expertise.

The Americans with Disabilities Act

It is important to note that the Americans with Disabilities Act prohibits an employer from discriminating against a person with a disability, as defined by the Act, who is qualified for a desired job. Therefore, an employer cannot refuse to let an individual with a disability return-to-work because the worker is not fully recovered from injury, unless the worker (1) cannot perform the essential functions of the desired job with reasonable accommodation; or (2) would pose a significant risk of substantial harm that could not be reduced to an acceptable level with reasonable accommodation. Because reasonable accommodation may include reassignment to a vacant position, an employer may be required to consider an employee’s qualifications to perform other vacant jobs as well as the job held when injured.

The ADA and light-duty work. Does the ADA require an employer to create a light-duty position that is totally different from the worker’s previous job for a returning employee with a disability? Not unless the heavy-duty tasks an injured worker can no longer perform are marginal job functions that could be reassigned to coworkers. However, if an employer already has a vacant light-duty position for which an injured worker is qualified, it might be a reasonable accommodation to reassign the worker to that position. If the position was created as a temporary job, a reassignment to that position need only be for a temporary period.

Medical inquiries under the ADA return-to-work issues. It may be necessary to provide an additional accommodation to an injured worker in a light-duty position to enable the worker to perform the essential functions of that position. For example, suppose a telephone line repair worker broke both knee joints and fractured her legs in a fall. She will have to use a wheelchair for nine months. Unable to do her previous job, she is placed in a light-duty position processing paperwork. If the office to which she is assigned is not wheelchair-accessible, she may have to be given a different office. Or the office could be made accessible by widening the door, if this would not be an undue hardship.

Under the ADA, medical examinations or inquiries may be required when an employee wishes to return-to-work after an injury or illness, if job-related and consistent with business necessity. Business necessity can include an exam to determine if the person meets the ADA definition of person with a disability, if an accommodation has been requested. Also, an examination may be made to determine if the person is able to perform the functions of a light-duty job or the job held before the injury or illness, or to identify an accommodation that may be needed in order to enable the person to perform the essential functions of an available job.

The Family and Medical Leave Act

On February 5, 1993, President Clinton signed the Family and Medical Leave Act, which took effect August 5, 1993. The bill makes available to eligible employees up to 12 weeks of job-protected unpaid leave per year in certain cases involving a birth, an adoption, or a serious health condition of an employee, a child, a spouse or a parent.

It is certain that the bill will have an effect on the rehabilitation of employees who have been injured on the job or who suffer from an occupational disease, since it mandates what risk management consultants have been advising employers to do for some time--preserve a sick or injured employee’s job while giving the employee some time off to recuperate. In that way, the employee is more likely to return to productive work instead of lingering at home collecting workers compensation for an indefinite period of time.

Indeed, there are several advantages to giving an employee time off to recover from an injury or illness. In addition to cutting down on the amount of workers compensation benefits that must be paid, a genuine attempt to accommodate a worker with a disability can protect an employer against a lawsuit for retaliatory discharge. In a 1992 case, for example, because a worker’s employer had allowed her leave from her job for extensive periods of time and had permitted her to work in a position in which she could sit for part of the day, the Wyoming Supreme Court decided that the employee did not prove her allegation that her employer had discharged her in retaliation for filing a workers compensation claim.

How to manage FMLA and workers compensation claims

Suppose an employer notifies an employee on workers compensation disability leave that there is now a light-duty position available for the employee to return to. Must the employer consider the FMLA in this situation?

Yes. If the employer has designated that the employee is already out on FMLA leave, you cannot put the employee back into a light-duty job. The regulations focus on the job that the person was doing; those that deal with returning an employee to work provide that an employer must return an employee back to the same job or an equivalent job that was held before going out on FMLA leave.

If a light-duty job is equivalent to the job the employee had before going out on leave, then the employer can return the employee to that job. But normally that is not the case. Instead, you have a situation where an employee is a machine operator who has some problem that makes it impossible for the employee to use his or her arms in a normal fashion. Frequently, the employee can still do some light stock work--a type of nondexterous work. That would be the normal kind of light duty, and that is not an equivalent job. An employer cannot force such a job upon an employee who is out on FMLA leave.

Moreover, (perhaps the more common situation) if the employee was not already on FMLA leave, he or she could assert rights under the FMLA at the time the employer requested that he or she come back to a light-duty job.

Reprinted with permission. © CCH