New Rules for Absence Management

By Bergman, Christina; Moebus, Janis | Risk Management, April 2017 | Go to article overview

New Rules for Absence Management


Bergman, Christina, Moebus, Janis, Risk Management


A variety of regulations regarding the rights of employees with disabilities have spurred employers to reassess workers compensation and return-to-work programs.

In addition to actions by the Equal Employment Opportunity Commission (EEOC) that have resulted in high-profile, multi-million dollar settlements, employment law changes have underscored the need for a new strategy for addressing employee disabilities.

In 2009, for example, the EEOC announced a record-setting consent decree involving a class action lawsuit under the Americans with Disabilities Act (ADA) for $6.1 million related to a workers compensation leave policy. The suit alleged that the employer maintained an inflexible leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations.

In 2011, a $10 million disability suit alleged that another employer unlawfully denied reasonable accommodations to hundreds of employees and disciplined and/or fired them under a no-fault attendance policy.

Recently, the EEOC outlined its 2.017-2021 "strategic priorities" for enforcement, including an increased focus under the Americans with Disabilities Act Amendment Act (ADAAA) on employers' inflexible leave policies. The focus of EEOC enforcement could be impacted by political changes under the new administration, but for now the law remains, and failure to comply will impact employers. Companies are especially vulnerable to regulatory scrutiny if they require employees to be 100% healed before returning to work or have inflexible leave policies and job qualification standards that discriminate against individuals with disabilities.

THE CHANGING DEFINITION OF DISABILITY

Employers have long arranged various forms of job modifications or light duty to accommodate employees during their recovery from work-related injuries and illnesses. Unfortunately, these programs historically were reactive and lacked consistent application or a structured, iterative framework. Further, employers typically focused solely on work-related or occupational injuries and did not always link non-occupational injuries or illnesses to the same standards.

The ADA AA has expanded the definition of disability, however. According to the ADAAA, disability is now defined as a physical or mental impairment that substantially limits one or more major life activities; a record of a physical or mental impairment that substantially limited a major life activity; or an actual or perceived impairment that is not both transitory and minor (emphasis added). Under this expanded definition, an employer can no longer treat occupational and non-occupational conditions differently. Moreover, all restrictions to an employee's activity and all requests from employees for accommodation must be evaluated individually--but according to the same internal process.

As a result, complex considerations including those involving compliance with ADAAA, the Family Medical Leave Act (FMLA), EEOC requirements and varying state regulations raise a number of issues that call for a proactive process and consistent approach to stay-at-work and return-to-work programs. Given their roles in workers compensation programs, many risk managers are well positioned to initiate collaboration with other functions in their organizations to develop a dynamic and comprehensive return-to-work/stay-at-work toolkit to manage absences and disability in the workplace. This toolkit should provide the mechanism to support day-to-day injury management activities and offer a consistent framework for preventing and managing absences.

A key aspect of the expanded definition of disability involves the concurrent, proactive evaluation of ADAAA and workers compensation, along with other overlapping obligations such as FMLA. Accordingly, reasonable accommodations should begin as soon as an employer becomes aware that an individual employee is having difficulties at work due to a serious medical problem. …

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