Workers’ Participation Necessary for ADA Compliance
Want to avoid problems with the Americans with Disabilities Act? Get the injured worker involved from the get go in new injuries. That’s the advice of two experts.
Employers who turn a blind eye to the reasonable accommodation process early in the claims process may be acting illegally. Workers’ comp practitioners need to understand the nuances of the ADA in order to be in compliance.
“We in the workers’ comp industry have tended to do stay-at-work/return-to-work without the participation of the worker,” said Dr. Jennifer Christian, president of Webility Corporation and a veteran workers’ comp/disability expert. “The big difference I heard when talking to Aaron is that the worker needs to be involved in the discussion — at every step.”
“Aaron” is Aaron Konopasky, senior attorney advisor in the Equal Employment Opportunity Commission’s ADA/GINA Policy Division. As the chair of the work fitness and disability section of the American College of Occupational & Environmental Medicine, Christian is a member of a national return-to-work advisory group for the Department of Labor’s Office of Disability Employment Policy. Part of her role is developing a policy paper on promoting function and work as a health outcome for which stakeholders can be held accountable.
Christian said she was surprised to learn the ADA applies anytime a medical condition can potentially disrupt an employee’s participation in work. “There are people who come in with a disability, and those who acquire a disability while working for you,” she explained. “The ADA applies to any kind of health condition that will have a substantial impact on somebody’s ability to come to work and do their job.”
The need for active engagement by the injured worker is drawn from language in the ADA. Largely misunderstood by many employers, it is called the interactive process.
The ADA is a civil rights act that was signed into law on July 26, 1990, and amended effective Jan. 1, 2009. The law includes a requirement that employers reasonably accommodate their employees’ disabilities, ideally with input from the employee.
“The law says that an appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the individual with a disability,” Christian said.
Once the employer has received the leave accommodation request from the employee with a disability, “the employer must engage in the ADA interactive accommodation process with the employee to determine whether there is a reasonable workplace accommodation that will enable the employee to perform the essential functions of his or her position,” according to a white paper on the ADA published by The Reed Group. “The process includes discussion and exchange of information between the employee and the employer, and sometimes with medical professionals or others.”
While the ADA does not specifically define the interactive process, the EEOC says it shows employers are making a good-faith effort to comply with the ADA, according to the Job Accommodation Network. “And from a practical standpoint, it is a way to streamline the accommodation process and help insure that effective accommodations are provided.”
According to Christian, the provision means “that injured workers will need to be active participants in their employers’ stay-at-work and return-to-work decision-making process.”
Language about the interactive process is included in the appendix to the administrative rules to the ADA with several problem-solving steps employers should use. The law says reasonable accommodations should be determined by an interactive process, which can include:
- Analyzing the particular job involved, its purpose, and essential functions.
- Consulting with the individual to ascertain the precise job-related limitations imposed by the disability and how they could be overcome with a reasonable accommodation.
- Working with the injured person, identifying potential accommodations, and assessing the effectiveness of each.
- Considering the employee’s preference and selecting and implementing the accommodation that is most appropriate for both the employee and the employer.
Advice for Employers
ADA-related issues can occur at many different points during an employee’s recovery from an injury. Employers need to evaluate and manage workers’ comp and ADA legal issues simultaneously. Christian and Konopasky collaborated to write some concise guidance for employers on why, when, and how to do that.
“You have to think of the ADA and workers’ comp — or short-term-disability — running concurrently, not sequentially,” Christian said. “That’s the administrative compliance angle.”
As she and Konopasky explained, obligations for reasonable accommodation start when the employer realizes a worker’s medical problem is impacting the employee’s ability to work. “If the condition has the potential to significantly disrupt the employee’s work participation, the employer should immediately engage the worker in an interactive process to look for a reasonable accommodation under the ADA,” they wrote.
The three identified specific times when the ADA may apply:
- At the time a person is injured. “No matter whether the condition is already stable or is still evolving, the ADA may require the employer to provide a reasonable accommodation that would enable the individual to perform his or her essential job functions, unless doing so would involve significant difficulty or expense.”
- While recovering out of work due to injury. If the worker has been unable to work at all for a period, the interactive process should begin as soon as the worker’s condition is stable enough that a reasonable accommodation might allow the worker to perform the essential functions of the job.
- When the individual has exhausted his leave and workers’ compensation benefits and is still unable to return to the original position even with an on-the-job reasonable accommodation. At this point, whether or not the medical condition has reached MMI, the employer should consider other forms of reasonable accommodation.
Speaker Proposal Deadline Looming
The deadline is nearing for submitting proposals to speak at the 24 annual National Workers’ Compensation and Disability Conference & Expo held in Las Vegas.
The conference is looking for panels and individual speakers to present strategies that will help worker’s comp payers solve claims challenges, teach best practices for selecting and managing service providers, or can enlighten on industry trends.
Those are just a few of the general topic areas we are interested in hearing employers, vendors, attorneys, medical providers, regulators and other workers’ comp professionals address. We are eager to hear other great topic ideas.
Presentation proposals can focus on new, innovative strategies that reduce injuries and costs. But risk managers, workers’ comp managers, and disability managers are also welcome, for example, to share their unique experiences with adopting tried-and-true practices at their companies.
Integrated disability strategies combing solutions for workers’ comp and non-occupational drivers of employee absence are of particular interest to us this year.
Conference speaker proposals are due by February 6th, 2015. The event will be held November 11-13 at Mandalay Bay in Las Vegas.
Speaker proposal forms are available at http://www.wcconference.com/speak.html
If you or your company plans to submit a proposal for a session presentation, please keep in mind that we do prioritize those submissions that include an employer on the panel.
However, we also understand that not all presentations can include an employer speaker and we value the knowledge and information that other workers’ comp professionals serving the payer community bring to the conference.
Here is some advice to increase the potential for having your RFP selected:
- Consider submitting multiple RFPs because we sometimes receive several proposals from different companies wishing to speak on the same topic. We may only select one presentation per topic in such cases. Submitting multiple RFPs provides an alternative when one of your ideas is a popular one among several submitters.
- Select topics with relevance for a broad range of workers’ comp professionals. The greater the relevance and the stronger the speaker’s experience and knowledge the greater the possibility of being selected.
- Avoid submitting proposals that are mere product or service pitches featuring company personnel responsible for sales or marketing.
- Review additional advice available in a past advisory http://www.riskandinsurance.com/2015-nwcdc-call-proposals/.
I am also available via telephone or email for anyone wishing to discuss their proposal content ideas before submitting.
Roberto Ceniceros, conference chairman 208 286-1425
What Is Insurance Innovation?
Truly innovative insurance solutions are delivered in real time, as the needs of businesses change and the nature of risk evolves.
Lexington Insurance exemplifies this approach to innovation. Creative products driven by speed to market are at the core of the insurer’s culture, reputation and strategic direction, according to Matthew Power, executive vice president and head of strategic development at Lexington, an AIG Company and the leading U.S.-based surplus lines insurer.
“The excess and surplus lines sector is in a growth mode due, in no small part, to the speed at which our insureds’ underlying business models are changing,” Power said. “Tomorrow’s winning companies are those being built upon true breakthrough innovation, with a strong focus on agility and speed to market.”
To boost its innovation potential, for example, Lexington has launched a new crowdsourcing strategy. The company’s “Innovation Boot Camps” bring people together from the U.S., Canada, Bermuda and London in a series of engagements focused on identifying potential waves of change and market needs on the coverage horizon.
“Employees work in teams to determine how insurance can play a vital role in increasing the success odds of new markets and customers,” Power said. “That means anticipating needs and quickly delivering programs to meet them.”
An example: Working in tandem with the AIG Science team – another collaboration focused on innovation – Lexington is looking to offer an advanced high-tech seating system in the truck cabs of some of its long-haul trucking customers. The goal is to reduce driver injury and fatigue-based accidents.
“Our professionals serving the healthcare market average more than twenty years of industry experience. That includes attorneys and clinicians combining in a defense-oriented claims approach and collaborating with insureds in this fast-moving market segment. At Lexington, our relentless focus on innovation enables us to take on the risk so our clients can take on the opportunities.”
— Matthew Power, Executive Vice President and Head of Regional Development, Lexington Insurance Company
Power explained that exciting growth areas such as robotics, nanotechnology and driverless cars, among others, require highly customized commercial insurance solutions that often can be delivered only by excess and surplus lines underwriters.
“Being non-admitted, our freedom of rate and form allows us to be nimble, and that’s very important to our clients,” he said. “We have an established track record of reacting quickly to trends and market needs.”
Lexington is a leading provider of personal lines coverage for the excess and surplus lines industry and, as Power explains, the company’s suite of product offerings has continued to evolve in the wake of changing customer needs. “Our personal lines team has developed a robust product offering that considers issues like sustainable building, energy efficiency, and cyber liability.”
Most recently the company launched Evacuation Response, a specialty coverage designed to reimburse Lexington personal lines customers for costs associated with government mandated evacuations. “These evacuation scenarios have becoming increasingly commonplace in the wake of recent extreme weather events, and this coverage protects insured families against the associated costs of transportation and temporary housing.
The company also has followed the emerging cap and trade legislation in California, which has created an active carbon trading market throughout the state. “Our new Carbon ODS product provides real property protection for sequestered ozone depleting substances, while our CarbonCover Design Confirm product insures those engineering firms actively verifying and valuing active trades.” Lexington has also begun to insure new Carbon Registries as they are established in markets across the country.
Lexington has also developed a number of new product offerings within the Healthcare space. The Affordable Care Act has brought an increased focus on the continuum of care and clinical patient safety. In response, Lexington has created special programs for a wide range of entities, as the fast-changing healthcare industry includes a range of specialized services, including home healthcare, imaging centers (X-ray, MRI, PET–CT scans), EMT/ambulances, medical laboratories, outpatient primary care/urgent care centers, ambulatory surgery centers and Medical rehabilitation facilities.
“The excess and surplus lines sector is in growth mode due, in no small part, to the speed at which our insureds’ underlying business models are changing,” Power said.
Apart from its coverage flexibility, Lexington offers this segment monthly webcasts, bi-monthly conference calls and newsletters on key risk issues and educational topics. It also provides on-site risk consultation (for qualifying accounts), access to RiskTool, Lexington’s web-based healthcare risk management and patient safety resource, and a technical staff consisting of more than 60 members dedicated solely to healthcare-related claims.
“Our professionals serving the healthcare market average more than twenty years of industry experience,” Power said. “That includes attorneys and clinicians combining in a defense-oriented claims approach and collaborating with insureds in this fast-moving market segment.”
This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Lexington Insurance. The editorial staff of Risk & Insurance had no role in its preparation.