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By GAIL KRINSKY, a senior consultant for Marsh Risk Consulting's Claim Consulting Practice

Although the recession forced many employers to focus heavily on workforce reductions in the past few years, 2010 has seen a renewed interest in returning injured employees to work more quickly.

Examples of legal changes that could affect existing return-to-work programs include the Americans with Disabilities Act Amendments Act (ADAAA), which expands the population of people eligible for protection, and the Family Medical Leave Act (FMLA), which provides job protection for employees with serious health conditions. Both could necessitate changes to an employer's return-to-work program--or, at the very least, prompt employers to review procedures currently in place.

Many corporate return-to-work policies and procedures that Marsh reviews contain strong cost-containment approaches for workers' compensation claim costs. When viewed from an overall enterprise perspective, however, some have the potential to shift the exposure from the workers' compensation side to the employment practices liability side.

Among the most common landmines we find in return-to-work programs are: inconsistent policies, overly broad accommodation policies, obsolete practices, lack of training, and rigidly-defined time limits. These all erode the overall goal of helping injured employees return to full and regular work as quickly, safely, and most cost-effectively as possible.

We will look at each one individually.

Inconsistent policies: Informal programs with no consistency in policy or execution have the potential to draw a discrimination charge if your employees are treated differently from manager to manager and location to location. Without clear guidance, an employer leaves it to managers to navigate the course of a temporary accommodation policy in accordance with workers' compensation rules, while avoiding the potential conflicts presented in the broader context of interacting employment laws.

Broad accommodation policies: Policies that accommodate every injured worker as soon as he or she is released to return to work can backfire. If your policy does not incorporate a more thoughtful approach, or should the work an employee is assigned add no value to your company, you need to revisit your program. For example, such an overly broad approach may serve to establish that no form of accommodation is considered unreasonable by the employer.

Obsolete practices: Practices that have not been kept current with changes to state and federal law are likely obsolete. If you have not reviewed and updated your program in the past year, it is highly likely that you have procedures based on outdated information.

Lack of training: Problems can arise from a failure to train and/or to audit for compliance. A program is only as good as its execution; with no training on how to execute your program and no audit program in place, there is little chance that your locations will be fully compliant with critical elements of your program.

Time limits: Policies that include rigid time limits, such as 12-month termination clauses without a full duty return-to-work, have the potential to result in allegations against your company of wrongful termination and/or discrimination. Rigid time limits for providing temporary transitional duty can compromise and reduce the intended benefit of early return-to-work. A more thoughtful evaluation may serve everyone's needs.

Keeping your return-to-work program free from these landmines will not only reduce exposure to potential employment claims and decrease unnecessary costs, but also help you reach your ultimate goal: Aiding an injured worker's recovery.

While this article is not intended to be taken as advice regarding any individual situation (and should not be relied upon as such), Marsh recommends the following best practices in establishing return-to-work programs:

Adopt a formal program: Develop a formal, written return-to-work program that fits your organization's unique culture. Include training and compliance audit elements into your procedures. Get outside help if you need it.

Establish transitional duty eligibility criteria: Adopt a guiding rule that transitional duty is available to injured employees when their restrictions are temporary and when you have existing work tasks that they can perform within their restrictions that add value to the organization. Alternatives such as return-to-work at nonprofit organizations may also be considered as a last resort.

Only address temporary restrictions in your program: Temporary restrictions differ from permanent disabilities, and the road to accommodation should follow different paths. Early on, you may not know if an employee will recover sufficiently to return to his/her regular job. Your program should thus incorporate an approach and prescribed methods to ensure that the right path--meaning temporary, transitional duty as opposed to permanent accommodation--is being pursued in the context of this program. In all cases, engage your employees in the program at all times. This becomes especially important should the shift from temporary to permanent restriction occur. If not, you may find yourself in the throes of an ADAAA complaint and may be required to demonstrate why the accommodation you have been providing would be an undue hardship for the company if continued.

Incorporate time limits: Setting time limits on all aspects of your program will instill a sense of urgency in all parties and will add momentum to your process. Making the time limit known to the employee and the treating medical provider allows everyone to work toward a common goal.

Limit temporary transitional duty: Unlimited temporary transitional duty poses problems with productivity, operational management and staff morale, and potentially may draw an ADAAA complaint should you attempt to take a light-duty job away. On the other hand, organizations that limit transitional duty to 30 days fail to address the claims involving serious injuries with the high-dollar exposures. Those claims should be the target of your cost-containment efforts as the cost may rise exponentially if the employee is never able to return to the workforce. Failing to address this bucket of claims could negate the return on investment your program could produce.

Review your termination policy: Ensure that your termination policy is compatible with current best practices. Terminating after 12 months all employees who are unable to return to full and regular work without giving careful consideration to how and why this should be the policy, may raise a host of potential problems for the organization. If you have not yet incorporated the interactive process into your procedures, waste no time in addressing the deficiency.

In summary, Marsh recommends that all those involved in return to work in your organization--the risk manager, legal counsel, human resources, etc.--take a serious look at your existing program to determine if there are any landmines hidden in your protocols. This is the case whether your program is formal or informal, and whether it is executed by your human resources groups or by your location operational leadership. As a first step, take the time to assess the exposure your company faces should you find any of these deficiencies exist in your current programs. Such an assessment will help you make the business case to allocate the resources you may need to remove the landmines and move forward with a best practices program.

October 1, 2010

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