Back to Work

Barbara Metzger learned she had breast cancer in early 2007. What happened next to the longtime office clerk was also life-altering: When she attempted to return to work, Metzger was fired.

The dismissal, detailed in documents from the U.S. Equal Employment Opportunity Commission (EEOC), provides a cautionary tale for employers about what not to do when workers return to work from injuries or illnesses.

It illustrates the critical need for HR professionals and employers to develop viable back-to-work programs and follow the letter of the law.

Metzger, who had worked for nearly 25 years at Medical Health Group Inc. in White Marsh, Md., was on approved medical leave while recovering from surgery. Although she reportedly told the practice administrator that she was ready and able to return to work full time while continuing her medical treatments, her employer had already drafted a letter of termination about a week before she was slated to return.

The letter noted the serious nature of Metzger's illness, questioned her ability to perform and stated "We must exercise our option to permanently fill your position."

The firing might have been a done deal except that Metzger decided to fight. On her behalf, the EEOC filed a lawsuit in the U.S. District Court for the District of Maryland, alleging discrimination under the Americans with Disabilities Act (Civil Action No. 1:09-cv-00803-WDQ).

The case wound its way through the courts, and in 2009 Metzger was vindicated. Her former employer agreed to pay a settlement of $125,000, plus other relief. The organization also was ordered to modify its anti-discrimination policies and provide training to officers, supervisors and managers.

Return to Productivity

According to the National Safety Council, employers experienced 55 million lost days of production for on-the-job worker injuries in 2009, and a staggering 255 million days for injuries that occurred off the job. Wage and productivity losses from unintentional injuries in 2010 totaled $374.1 billion.

The longer injured employees are away, the less likely they are to return to the workplace. Ideally, return-to-work programs enable employees who have suffered illness or injury to resume work sooner, even while still recovering.

The goals are to:

• Reduce employer costs related to workers' compensation, disability and medical insurance.
• Save the cost of hiring and training replacements.
• Minimize the emotional and financial impact of an illness or injury for the employee.
• Enable the worker to continue relationships with colleagues and avoid the mutual alienation that can result from an extended absence.
• Boost productivity and morale in the organization.
• Enable the employee to earn a living, remain independent, and return to his or her previous economic, social and vocational status.

A Team Effort

Typically, back-to-work programs begin with HR personnel setting a formal policy in writing.

Components of a typical back-to-work program might include:

• ​A return-to-work coordinator to facilitate communication between stakeholders, such as the employer, the employee, medical providers, workers' compensation and disability insurers, and others.
  
• Letters and forms to document actions taken to facilitate a return to work.
  
• Tools to track absences.
  
• A liaison authorized to communicate between company managers and medical providers.
  
• A system for identifying alternative jobs and modified duties.
  
• Education for supervisors and co-workers.
  

When launching the program, clearly communicate how it benefits the employer and employees.

A program "includes many stakeholders," says David Kasper, vice president of employee benefits for Waste Management Inc. in Houston. "HR, benefits, risk, managers and supervisors, the legal department, and nearly all of your health and welfare plan and occupational disability partners" should help get employees back to work.

Kasper oversees global health, occupational health and other programs for some 45,000 active employees and 2,000 retirees.Ten years ago, he led the company's implementation of a comprehensive approach to managing employee-related risk expenses as well as health and productivity strategies. Today, Waste Management's HR team works hand-in-hand with multiple departments to coordinate return-to-work efforts.

"These programs result in employers lowering the length and duration of employee absences, thereby reducing costs as well as improving overall employee morale and workforce planning," Kasper says. "Employees return to both good health and productivity sooner, and thus returnsooner to full earning capacity."

Paula Aznavoorian-Barry, program manager of group benefits for Liberty Mutual Insurance in Dover, N.H., shares that view. She oversees vocational services for the insurer's customers and is aware of the negative impact that absences have on productivity, morale and the bottom line.

"Employers who have return-to-work programs typically reduce the number of days employees are away from work by 25 percent to 50 percent," she explains.

Within an organization, Aznavoorian-Barry says, a decision has to be made whether one program will cover all of the reasons an employee may be away from work or if two programs will be needed. In some cases, a chief financial officer or risk manager will administer one program for employees returning from workers' compensation leave, while HR professionals will oversee another program for people returning from leave covered under group disability plans, she says. Some employers outsource their return-to-work programs to their workers' compensation or disability insurance providers or third-party administrators.

The Right Time

Be it a back injury, carpal tunnel syndrome or another ailment, experts stress the need for a case-by-case determination of the right timeline for an employee to return to work. "It's very job-specific," explains Christine V. Walters, SPHR, an employment law attorney who heads FiveL Co. in Westminster, Md.

Ultimately, the treating physician decides when an injured, ill or disabled employee can return to work. It's critical that doctors balance the worker's recovery needs with the aim of the employer to have them return to work, says Ellen MacEachen, a scientist at the Toronto-based Institute for Work & Health, a nonprofit that researches work-injury prevention, return-to-work and workers' compensation issues.

Kathleen Martinez, the U.S. Department of Labor's assistant secretary for disability employment policy, adds, "Workplace flexibility can create work schedules that make room for regular medical appointments, child care issues and other unique employee needs."

In addition to the guidance obtained from the treating physician, experts say federal, state and local agencies may provide job coaches, rehabilitation counselors and others well-versed in accommodations who can help an employee return to work or stay on the job.

But "in practice, the worker determines when he or she is ready," says Ivan Steenstra, a scientist at the Institute for Work & Health. He notes that some employers adhere strictly to disability guidelines that predict how long it "normally" takes for a worker to return based on a limited number of factors. However, each case is different, he says, and too strict an application of such guidelines can "lead to a lot of trouble, miscommunication and an adversarial process."

Roadblocks

While there's clear value in establishing return-to-work programs, HR professionals must be mindful of the potential challenges.

Some employers might not really want to rehabilitate the worker, so they rush an injured employee back to work too soon. "An employer may bring a worker back as early as the next day after injury because this is the least expensive way for them to manage the injury costs," MacEachen says. The results may cause continuing difficulty for the worker.

In some cases, employers might not be committed to a return-to-work program because of costs, Walters says.

Yet Martinez, who has been blind from birth, points out that most employers report no or low costs when implementing stay-at-work and back-to-work strategies: "More than half of the employers said there was no cost whatsoever to making accommodations, while another 38 percent experienced a one-time cost." Of those accommodations that did have a cost, the typical one-time expenditure by employers was $500, Martinez says, citing an ongoing study that surveyed 603 employers and was last updated in 2011 by the Job Accommodation Network, a free consulting service funded by the U.S. Labor Department.

Another challenge: Sometimes co-workers are reluctant to do extra work to assist a returning colleague. "Co-workers are in an awkward position," MacEachen says. "They may be supportive of their co-worker returning to work, but this support erodes" under certain circumstances, she says. "It may mean their own workload significantly increases, or they're uncomfortable and lack guidance about how to interact with a co-worker who returns but is changed, for instance, due to mental trauma." In some cases, modified work means the returning worker is placed with new colleagues.

Privacy Concerns

Yet another consideration involves the confidentiality of personal medical information. The Health Insurance Portability and Accountability Act of 1996 set standards that protect medical records and other personal health information.

Currently, MacEachen says, employers get only "functional abilities" information from forms that workers' health care providers complete and submit to workers' compensation offices, but this doesn't tell employers enough.

"For instance,they don't know if the worker is on powerful pain meds such as opiates," MacEachen continues. But at the same time, employers are not rehabilitation therapists—they are not always well-equipped to handle these issues of work-injury recovery."

For this reason, some researchers in the work-disability prevention field are promoting the idea of hiring an intermediary—a coordinator. Such coordinators may be found in-house within large organizations, but disability management consultants can also play this role. "They can coordinate between the insurer, health care providers, the workplace and the worker," MacEachen explains.

Aznavoorian-Barry of Liberty Mutual says members of her team have found it helpful to use the insurer's own medical professionals to reach out to treating doctors, rather than having employers communicate with medical providers. "This allows peer-to-peer discussions based on the latest evidence-based medical literature and guidelines," she says.

The program at Waste Management provides coaches and occupational health counselors from insurers and other vendors to help employees deal with the mental and emotional issues associated with illnesses and injuries. They work within and around the health care system and provide aid via community-based resources. When communicating directly with medical providers,Walters says employers should do it carefully—meaning with the employee's consent and not via the employee's immediate supervisor.

The Family and Medical Leave Act, for example, provides that "under no circumstances" may the employee's direct supervisor contact an employee's physician for clarification or authentication of medical information. The employer's HR representative or leave administrator may contact the employee's physician for these purposes.

"Tort claims of invasion of privacy have also arisen when a manager, even with good intentions, shares private medical information with co-workers who, also with good intentions, ask the manager about the status of a co-worker," Walters says.

Despite such concerns, Aznavoorian-Barry urges HR professionals not to be put off by possible obstacles but to instead focus on the tangible benefits. "Effective return-to-work programs can easily overcome these and other barriers," she says.

Alternative Duties

If an employee is unable to perform his or her pre-injury job, the employer might have to formulate a case-specific alternative such as light, transitional or modified duty. This isn't always an easy proposition.

According to the Job Accommodation Network, examples of reasonable accommodations include making existing facilities accessible; restructuring jobs; allowing part-time or modified work schedules; modifying equipment; changing tests, training materials or policies; providing qualified readers or interpreters; and reassigning workers to vacant positions. Telework is another option.

The courts are split as to whether, as a reasonable accommodation, employers are required to place a current employee in a vacant position over another, more-qualified candidate, Walters says. She notes that federal guidance from the EEOC indicates that such an obligation exists.

In worst-case scenarios, an employee can be terminated if he or she is unable to perform the job responsibilities, Walters says. But legally, the employer must take precautions.

Walters notes that the Americans with Disabilities Act requires that an employer engage in an interactive dialogue with the employee to determine what reasonable accommodations, if any, the worker needs to perform the essential functions of the job. "The employer should try to ensure that a worker can safely perform 'light' duty, but without creating the perception that, by removing the essential functions of their [old] job, they've becomenonessential," she says.

If the worker cannot perform the essential functions, the employer should consider whether there are opportunities for job sharing or vacant positions where the employee can perform the essential functions.

This requires "creativity and teamwork to identify what might be suitable," Kasper says. It's easier to find alternative jobs in facilities where there are multiple job types.

Measuring Results

The effectiveness of a program varies by organization, of course, but many experts sound similar themes.

Identify clear goals and measurements, Aznavoorian-Barry advises. "Metrics can range from the number of days employees are away from work to the cost for overtime. Specific metrics must reflect the employer's goals for the program, program structure and employee demographics," she notes.

Kasper studies:

• Average duration of absences.
• Return-to-work success rates.
• Lost workdays.
• Absences by type on any given day or year.

Steenstra explains that as a researcher, he measures "days until return to work, return to full duties, return to function and productivity when back at work."

It's more about goal setting than scientific measurement, he adds, explaining that "If a worker can get back to his previous job—and they most often can—they shouldn't be on modified duties indefinitely."

He emphasizes, however, that "You don't need to make major overhauls to get a worker back to work. The simplest solutions are often best; the worker is often the expert to come up with solutions that should also benefit co-workers."

The bottom line, Kasper says, is that "We want to make sure the employee is ready both physically and mentally and that they can transition back to work safely."