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In the face of new corporate policies and the recent expansion of the Americans with Disabilities Act, employers need to proactively get their workers' comp and benefits people on the same page.

For example, an injured worker who is unable to return to his original job and accepts a lump-sum settlement in exchange for signing an agreement stipulating that he is no longer employed with the company and waives his ADA rights could nevertheless still have a valid claim under the ADA -- if there is not adequate compensation paid.

In addition to potential ADA violations, Pimentel says employers who fail to create a dialogue between their HR and RM people may also face penalties from the Family and Medical Leave Act and the Health Insurance Portability and Accountability Act.

Traditional silos. "There's a huge disconnect between HR and RM," Pimentel said. Until recently, that was the accepted mind-set.

Those running light-duty/limited-duty programs for injured workers were from the RM side. Companies believed that issues surrounding injured workers were unrelated to the functions of HR.

"In larger companies, they just handed over all the return-to-work issues to RM," Pimentel said. "That actually went along pretty well for a good amount of time. Why? Because it was just light duty; there were few, if any, legal implications."

But efforts by employers to better control absence management in addition to legal changes and case law have left even the most well-intentioned employers exposed to profound liabilities.

The new normal. One of the changes that has led to the need for better internal communication is the push toward total absence management programs, Pimentel said. "HR, when they develop an absence management program, have to -- or should -- factor in what does absence management mean when you have someone on a workers' comp claim."

In a landmark $6.2 million settlement in 2009 between the EEOC and Sears, the company had a policy saying anyone who missed a certain number of days per year would be terminated from the company -- regardless of the reason. As Pimentel explains, the EEOC took exception to that rule and said the offering of unpaid additional days off as a form of reasonable accommodation should have been considered in cases of injured workers with disabilities.

With the ADA Amendments Act, more injuries are considered qualified disabilities and warrant reasonable accommodation by the employer. The definition of a person with disabilities has broadened. Carpal tunnel syndrome, for example, and bad backs may qualify.

"So if I am a person with a disability and you terminate me when I reach the maximum number of days and you don't look to see if you could have granted me additional days in addition to the maximum number, you have just violated the ADA," he said. "It shook everybody down to their knees and sent a lot of companies back to the drawing board on absence management programs."

Pimentel said another potential ADA violation can occur when RM gets a letter from a physician saying a particular worker will not be able to return to her job. "The RM thinks that's a claims issue but really the EEOC would consider it official notification that it is a disability under the act," he said. "If RM doesn't communicate the status with HR, it could be an ADAAA violation."

What to do. Getting HR and RM to sit down together is the first step in minimizing the liability risks.

"I don't foresee in the near future RTW being jointly run by HR and RM," Pimentel said. "But we do need to have them acknowledge that they are both stakeholders around this table ... and show all their cards and say 'here's what I need from you.'"

Getting departments to look at the other's programs and how they could impact each other should be a focus, he says. He suggests they identify what they have in common, what could potentially create problems for the other, and how they might work around those problems.

"Get them to talk to each other rather than about each other," he said. "That would be a really good first step."

Read more at the WorkersComp Forum homepage.

December 3, 2012

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