The hazards encountered on a daily basis by employees often lead to injuries. Even the most benign of situations canprecipitate an accident, the restrictions from whichare frequently difficult to accommodate. Despite the best training and safety equipment you may provide,accidents happen. Carrying workers’ compensation coverage is not only legally required, but also the bestway to reduce the financial risk; however, relying on your carrier is not enough. To keep your claim costs low and your premiums reasonable, a carefully tailored, well-executed return to work (RTW) policy is critical.
As an HR professional, you’ll want to be sure to properly craft your return to work policy and ensure it is specific to the nature of your business and to your company itself. Depending upon the nature of your business RTW may be complicated, but it is rarely impossible. There are core steps to guide you in the creation and implementation of a successful program.
Step 1: Implement a written RTW policy that is applied evenly. The program, as crafted, should apply to all employees equally and be administered by one individual or team to monitor and ensure even-handed application. It is important to follow the core policy of a well-run HR system: treat all of your employees fairly and consistently.
Step 2: Decide what job to offer. You need not place the employee back in their prior role, as this is often impossible. For example, if you’re in the restaurant industry and a line cook sustains a burn, avoidance of heat is a common restriction. Look to a job far from the heat of grills or ovens, perhaps preparing salad or cutting vegetables. Wait staff can often serve as a host, roll silverware, or wipe down menus.
Step 3: Ensure clear knowledge of the employee’s limitations. The injured employee should bring forms to you with the doctor’s restrictions. If your company relies on a packing and shipping department, a back injury may be difficult to accommodate due to lifting restrictions. Consider restrictions carefully and think outside the box to find the best way to keep your employee in the facility, for instance, in charge labeling or tracking of the freight.
HR Tip: If the forms have not been received, the insurance adjuster can provide you with copies.
Step 4: Send a light duty job offer letter via proper means. The law on this point is clear – you must notify the injured employee of the light duty, in writing, and via trackable means. A phone call telling your employee to return will not suffice. The letter need not state the job you’re offering, the shifts, or the pay, just that you have a position within the restrictions, and directing the employee to whom to report and when. If the job is refused, notify the adjuster immediately.
Step 5: Manage the first day back with care. Once the employee reports to work, set forth the details of the assignment and your expectations. Ensure the tasks are within the most recent restrictions, give the information about the new role, the shifts, and the pay.
If an employee’s sedentary restrictions have been accommodated with a desk job, ensure that person knows that they may stand to stretch or take a few minutes to walk around if needed each hour.
Step 6: Know what you can/cannot say. Keeping the peace is critical and that begins with management. It is incumbent upon supervisors to be role models. Ask the employee how they are feeling and to let you know if they need help. Do not accuse or imply that someone is faking an injury or exaggerating pain and do not broach the topic of lawyers, lawsuits, or litigation.
Step 7: Manage co-workers and their reactions. The aforementioned role models must not only lead by example, but must play referee. Do not allow co-workers to lob accusations such as those mentioned above or gossip. Temper jealousy with comments like: “if you got hurt, wouldn’t you want us to help you too?” If co-workers are heard talking about money the injured worker is supposedly getting through the case, end that conversation immediately as these claims are contagious and can spread throughout your organization.
Step 8: Monitor the actual work of the injured employee on light duty. One who is working with pain is more prone to re-injure or exacerbate their condition. Embarrassment, bravado, and thoughtlessness often lead the worker on light duty to not ask for help and instead, act outside the restrictions. For example, an employee may choose to bend to retrieve an item instead of asking for help; but, if bending is a restriction, doing so can increase pain and lead to tighter restrictions or a no work status, which can and does increase the claim costs. Management must watch to ensure the job is being done right as well as being done.
Step 9: Accommodate medical appointments without letting employees take advantage. Inevitably, some workers will try to take advantage. You must allow your employees to go to their appointments; however, depending upon your industry, work schedules may not match the standard workday of a doctor. Encourage your employees to make their physical therapy and other appointments around their scheduled workday, or shift their hours to accommodate them.
Step 10: Respond to complaints of the injured worker. If you are told, “My back hurts, I need to go home,” respond with, “If your back hurts, you need to go to the doctor, because the job is within your restrictions.” If your employee expresses, “This is work I am not allowed to do,” try, “Let’s go over your most recent restrictions to ensure your safety.” The key is to accommodate without letting the employee take advantage of the kindness of her/his employer.
Step 11: Decide how to pay the employee on light duty. Did you know you need not compensate at the same rate as prior to the accident and with tipped workers? The goal, to have the best financial outcome in your claim, is to offer work that allows the employee to earn 80% of that which was being earned pre-injury. You will need to update the insurance adjuster on the RTW and they can assist in these calculations.
Step 12: Report earnings to your workers’ compensation carrier. There are circumstances under which the employee will still be entitled to some compensation from the insurance carrier. It is incumbent upon you to ensure the adjuster has the weekly earnings to ensure benefits are properly and timely administered.
The benefits of a well-run RTW program are multifaceted. Getting the employee back inside the walls of the office or workplace lessens the amount of money being paid out by the carrier and thus your immediate claim costs and future insurance rates. Allowing the employee to sit at home leads to otherwise avoidable litigation; the lawyer ads playing on TV during the day are enticing. Hearing the local firm secured a million dollars for another injured worker leads your employee to see dollar signs flashing in neon lights. It also fosters wallowing and pain-focused behavior, which is detrimental to psychological health and makes it harder to convince someone that they are capable of working. It is difficult, if not impossible, for many to work while taking medications; as such, the RTW plan lessens the amount of medication used and lowers the risk of opioid addiction. Bringing your worker back, even in a slightly different capacity, makes it impossible for their attorney to argue that the worker is too injured to work or proves to that individual that they can do it if they try. Lastly, do not abandon your employee; show you care by doing what you can to ensure she/he still has income to pay the rent and feed the family.
It may not be an easy task to bring back an injured worker, but the financial benefits can be significant and as noted, it goes well beyond the money. It is beneficial to the physical and mental health of your employee too, and that is a win/win for any HR professional or business.
Amy Siegel Oran is a partner at Kelley Kronenberg, concentrating her practice exclusively on workers’ compensation defense. She can be reached at (561) 684-5956 or aoran@ kklaw.com