Robert Hall – Workforce

September 12, 2001July 10, 2018

Injured Employees A Supervisor’s Checklist

Here is a checklist of steps to take in the event of a workplace injury. Remember that every state has different compliance procedures.

Know the names and phone numbers of Department Contacts for questions related to employee safety and workers’ compensation.

Have a comprehensive Injury and Illness Prevention Plan that relates to the types of injuries and illnesses most common in your area/type of work. Contact OSHA for more information about this.

Have an Emergency Treatment Plan to ensure that any employee who is injured or becomes ill receives prompt and proper medical care at, or near, the worksite. Your insurance carrier can assist you.

Accompany the injured employee to the doctor, if medical treatment is needed. Ask the doctor about the employee’s ability to return to work.

Provide the injured employee with available information on employee claim forms for workers compensation benefits within 24 hours of knowledge of the injury or illness. Your insurance carrier can assist you.

Submit a completed Employer’s Report of Occupational Injury or Illness to your claims management coordinator or insurance claims representative.

Maintain regular contact with your employee during his/her period of recovery. Encourage co-workers to do likewise.

Minimize the employee’s time off work by creating transitional limited or modified duty assignments to facilitate return to work as soon as it is medically feasible.

The information and forms contained in this feature are intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.

April 1, 2000July 10, 2018

Light Duty, Limited Duty or Modified Duty Assignments

In most cases, some temporary modification of duties can be made for an employee that would allow them to return to work in a limited capacity, subject to his/her medical restrictions. Such temporary modifications are called “light duty, limited duty, or modified duty” assignments.

Temporary restructuring may include modification of essential or non-essential functions of the job, limitation of working hours, changes in working conditions, or physical modification of the work place. Departments are encouraged to have a policy regarding light/limited duty assignments.

Several of the Memoranda of Understanding (MOU) contain specific provisions related to light/limited duty as well. In general, light duty assignments are typically limited in duration (e.g. 45 days), but each supervisor should check with the applicable MOUs and department policy to get a better idea of the parameters of such assignments.

Reasonable Accommodation
Reasonable Accommodation is the modification or adjustment to a job, the work environment, or the way things are usually done that enables a qualified person with a disability or injury to enjoy equal employment opportunities.

It is expected that most requests for reasonable accommodation will involve existing employees who have become disabled, either through a work related injury or illness, or through a non work related injury or illness. The most common request will include the restructuring of jobs or tasks within a job, reassignment to a vacant position in another classification, modification of the existing work site, or acquisition of special equipment and devices.

Job Restructuring
Often the employee’s medical restrictions involve limitation of movement of one of more limbs. This is the case with back injuries that limit lifting, leg injuries that limit walking or bending, and arm/hand injuries that restrict any type of repetitive motion (e.g. carpal tunnel). Permanent job restructuring may involve reassignment of the injury aggravating tasks to another employee, perhaps in exchange for another task that the injured employee is able to perform.

For example, a cook who has a permanent back injury, may be unable to lift heavy pots or food sacks any longer. It is possible that this task may be assigned to another employee in exchange for additional cutting, peeling or washing chores that do not place additional strain on the back.

Reassignment to a Vacant Position
A common request of a worker upon return to work after an extended absence may be for a complete job reassignment. While it is preferable to consider other accommodations that will enable the employee to return to his/her customary job, if this is infeasible, the employer may seek to move the employee into another job classification for which the employee is qualified. This position may be at the same rate of pay, or a lower rate of pay.

Acquisition or Modification of Equipment of Devices
Another common request of an injured employee may be for special equipment to enable the individual to perform the job. Persons with back injuries may request special carts or lifting devices to help them transport heavy items. Persons with hearing disabilities may request things such as telephone handset amplifiers.

Contrary to popular belief, such accommodations are rarely too expensive when compared with the costs for training new staff to do the job of an experienced, though injured, employee. There is a tremendous amount of adaptive equipment available, much of it at minimal cost. In fact, many adaptive devices have been fabricated at the workplace, by a creative supervisor, for virtually no cost (e.g. ramps over stairs, lowered work stations).

Americans With Disabilities Act (ADA)
The ADA protects qualified individuals with disabilities from employment discrimination. The ADA has a three-part definition of “disability.” This definition reflects the specific types of discrimination experienced by people with disabilities. Therefore, it is not the same as the definition of disability in other laws, such as workers compensation. Under the ADA, a person with a disability is a person who has (a) a physical or mental impairment that substantially limits one or more major life activities, or (b) a record of such an impairment, or (c) is regarded as having such an impairment.

A physical impairment is defined by the ADA as “any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine.”

A mental impairment is defined by the ADA as “any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.”

To be a disability covered by the ADA, an impairment must substantially limit one or more major life activities. These are activities that an average person can perform with little or no difficulty, such as walking, breathing, seeing, hearing, working, etc.

Whether an injured worker is protected by the ADA depends on whether or not the person meets the ADA definitions of an “individual with a disability.” Work related injuries do not always cause physical or mental impairments severe enough to “substantially limit” a major life activity.

Also, many on-the-job injuries cause non-chronic impairments which heal with little or no long-term or permanent impact. Such injuries, in most cases, are not considered disabilities under the ADA. The fact that an employee is awarded workers’ compensation benefits, or is assigned a high disability rating, does not automatically establish that this individual is protected under the ADA.

What the Law Requires
To be protected by the ADA, an individual with a disability or an injury, must be qualified for the job that he/she is seeking. Qualified means that the person “satisfies the requisite skill, experience, education and other job-related requirement of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such a position.”

The key component of the definition, with regard to injured workers, is the ability to perform the essential functions of the position, with or without reasonable accommodation. Therefore, an injured worker may be protected under the law, if he/she can continue to perform the essential functions of the job with some type of reasonable accommodation.

It is important for supervisors to know that failure to provide reasonable accommodation under the ADA to a qualified employee with a disability, without good cause, can expose the State to penalties in excess of $100,000.

What the Law Does Not Require
The ADA does not require that you accommodate an injured employee by reassigning the essential functions of his/her job to another employee — even if the injured worker requests such an accommodation. The ADA also does not require that an employee be reassigned to another position in order to provide him/her with a job, especially if the employee is not qualified to perform the new job.

Remember, the employee must be able to perform the essential functions of the job to be protected under the ADA. It is the employer’s responsibility, however, to determine the essential functions of the job using reasonable, objective standards. For example: it is an essential function of a proofreader’s job to know the proper rules of grammar, however, it is probably not an essential function of a proofreader’s job to read sitting in a chair.

Relation to Workers’ Compensation
The ADA and Workers’ Compensation Laws have totally different purposes. Sometimes those purposes intersect, but they are by no means congruent. In some cases, the laws may conflict. However, there are three primary areas of focus for the supervisor in dealing with an injured worker:

The supervisor must be able to accurately, and objectively, develop a duty statement or job description for each employee’s assignment that accurately defines the “essential functions of the job.”

The supervisor must be open to returning an injured employee to work if he/she (a) can continue to perform the essential functions of the assigned job with reasonable accommodation, or (b) are qualified to perform another available job with or without reasonable accommodation.

The supervisor should not use a person’s injury as an excuse to preclude him/her from doing work that he/she is qualified and medically able to perform. This is especially true for injured workers who otherwise qualify for promotions, transfers, etc.

Disability Retirement
No matter how hard we try to keep our injured workers employed, there are some situations when the employee’s disability is so extensive, that he/she is incapable of performing most of the essential tasks of the job. In these cases, the employee may be eligible for a disability retirement, in addition to the permanent disability benefits provided under workers compensation.

If you believe that you have an employee who is incapable of returning to work, because of the severity of the medical restrictions imposed by the physician, then discuss the feasibility of disability retirement with the Return-To-Work Coordinator in your department.

The information and forms contained in this feature are intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.

April 1, 2000July 10, 2018

Documenting Applicant_Employee Medical Review

This form is filled out by the physician or medical examiner to provide input to the employer about the employee’s medical condition.

CONFIDENTIAL INFORMATION, ACCESS LIMITED TO:

APPLICANT / EMPLOYEE MEDICAL REVIEW

Physician, please complete this form and return to:

Employer: _________________________________
Attention: _________________________________

Address/Telephone:__________________________
__________________________________________

Including any pertinent medical reports by:
______________________.

Thank you.

Medical information may be required to determine if the individual meets the ADA definition of an individual with a disability and is entitled to an accommodation. EEOC TAM 6.6 Additionally, the employer may request medical documentation of functional limitations to support an accommodation request. EEOC TAM 3.6

Applicant / Employee Name:
__________________________________________________________

Job Title:
__________________________________________________________

Medical Review

I have reviewed the job description for this job title and examined the applicant/employee and it is my opinion that:

Applicant / Employee is currently able to perform all job functions described without posing a direct threat to the safety of self or others. Yes ____ No _____

IF NO, Applicant / Employee has the following limitations in relation to described job functions.

Functional Limitation(s) Duration

(Please be specific in your description) (State period of time)

_________________________________________________   _________________________
_________________________________________________   _________________________
_________________________________________________   _________________________
_________________________________________________   _________________________

Medical Diagnosis:
____________________________________________________________

Additional Comments:
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________

Please complete the risk assessment portion on Page Two of this form

The assessment of risk must be based on reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence. EEOC TAM 4.5(4).

It is my opinion that the applicant/employee meets the health and safety requirements of this position. Yes ___ No ____
(If no, complete the following section)

DIRECT THREAT RISK ASSESSMENT

The following factors must be considered in respect to the specific aspect of the disability that would pose a direct threat . The risk may not be speculative or temporary. It must be a significant risk of substantial harm. EEOC TAM 4.5(2)

(Please complete the following statements.)

Aspect of disability causing risk is: ____________________________

The type of harm this risk will cause is: __________________________
__________________________________________________________

(Check all statements that apply.)

______ The aspect of disability described will pose a risk for an extended period of time.

______ The resulting harm from this risk will be substantial.

______ It is highly probable that this harm will occur.

______ This significant risk of substantial harm is current or immediate.

Comments:
__________________________________________________________
__________________________________________________________
__________________________________________________________

Optional: Did the applicant and/or can you suggest any accommodations that could reduce or eliminate the health or safety risk and assist the individual to perform the essential functions of the job safely?
__________________________________________________________
__________________________________________________________
__________________________________________________________

Physician Signature
__________________________________________________________

Date _________________________

Medical Specialty
__________________________________________________________

The information and forms contained in this feature are intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.

April 1, 2000July 10, 2018

Documenting the Accommodation Consideration_Selection Process Under the ADA

This form is used to note what options the employer considered, what they were able to do/not do, and what the employer reasons were for their decision.

CONFIDENTIAL INFORMATION, ACCESS LIMITED TO:

ACCOMMODATION CONSIDERATION / SELECTION

When an individual with a disability is qualified to perform the essential functions, except for functions that cannot be performed because of related limitations and existing job barriers, the employer must try to find a reasonable accommodation to reduce or eliminate these barriers. EEOC TAM 3.2

Applicant / Employee Name:

Reason for Accommodation:

Job Related Limitation:

Direct Threat:

Existing Barrier(s):

An employer should always consult the person with the disability as the first step in considering accommodation. EEOC TAM 3.7

Accommodation(s) Suggested by and/or Discussed with Applicant / Employee:

1.
2.
3.
4.

If consultation does not identify an appropriate accommodation, technical assistance is suggested. EEOC TAM 3.11(4b)

	Internal/External Resource(s) Consulted	Date	Outcome
1.
2.
3.
4.

	Accommodation(s) Considered:	Cost	Source
1.
2.
3.
4.

Effective Accommodation(s) Considered Reasonable:

1.
2.
3.

The employer is free to choose among effective accommodations; however the individual’s preference should be considered – all things being equal. The accommodation selected should best serve the needs of the individual and the employer. EEOC TAM 3.8(4). The accommodation need not be the best available as long as it is effective. EEOC TAM 3.4

Selected Accommodation:
Total Cost:
Rationale for Selection:

Financial Assistance Obtained: (Specify amount next to source) (EEOC TAM 3.11)

Tax Credit for Small Business:
Tax Deduction/Barrier Removal:
Targeted Tax Credit:
Applicant/Employee:
Insurance: (Identify type):
Other: (Identify source)
Net Cost:(Total cost, less amount received from other sources):

Is this accommodation part of a Vocational Rehabilitation Plan? Yes or No

Accommodation device(s) or equipment is owned by:
Employee ___ Employer ___ Insurance Company ___

Other:
If other, please specify:___________________________________________

An individual is not required to accept an accommodation; however, if the individual refuses an accommodation necessary to perform essential job functions and as a result cannot perform those functions, the individual may not be considered qualified.

EEOC TAM 3.8 (III-II)

Applicant / Employee Rejected Accommodation:

Reason(s) Given:

Completed By:
Signature _________________________________________
Title_________________________________________

The information and forms contained in this feature are intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.

April 1, 2000July 10, 2018

Who and What You’ll Deal With if an Employee is Hurt

The ability to effectively communicate with the various professionals involved with your injured employee’s claim, medical treatment, recovery and return to work is an essential skill of the supervisor. Your primary role in this regard is a source of critical information about the nature of the employee’s job, including any skills and abilities that are essential for successful performance.

To help you understand your responsibilities, it is important that you understand the various roles and perspectives of the professionals that you may be required to deal with during your employee’s illness/injury.

Claims Coordinator
This individual (who may also serve as the Return-to-Work Coordinator) will be your key contact throughout the process. He/she will have the overall responsibility to ensure that your employee receives the workers’ compensation benefits and services that are legally required. In most cases, the Claims Coordinator will serve as a liaison between you and the Insurance Carrier claims adjuster, the treating physician, and the vocational rehabilitation specialist.

Personnel Transactions Specialist
A Personnel Specialist will be involved in requesting and monitoring benefit payments made for IDL and TD. The Personnel Specialist is available to advise employees about benefit levels and payment schedules.

The Insurance Carrier Claims Adjuster
The adjuster is the person who has the responsibility to monitor all payments made directly to the employee or to the employee’s physician, physical therapist, and vocational rehabilitation counselor. The claims adjuster will communicate directly with the employee’s physician and make a determination regarding the appropriateness of the treatment being received by the employee and the general prognosis for the employee’s return to work.

The adjuster may need a variety of different kinds of information from you, including the exact nature of the injury, the names of witnesses, the employee’s duty statement and work history, and opportunities for light duty assignments.

Treating Physician and Medical Examiner
The term “treating physician” here is used to describe anyone who, by law, can render medical treatments to your employee. This may include a medical doctor, a chiropractor, an acupuncturist, a psychologist, or a physical therapist. This doctor will control the primary care of your injured worker.

It is unusual, but not inappropriate, for you to have direct contact with a treating physician. Most of the time, however, your communication to the physician will be through the Claims Coordinator or Claims Adjuster.

There are also physicians who serve as professional medical examiners in workers’ compensation cases. There are three different types of medical examiners: an Agreed Medical Examiner (AME), an Independent Medical Examiner (IME) and a Qualified Medical Examiner (QME). As a supervisor, you do not need to know the circumstances under which each of these specialists may be used in a case.

However, you need to understand that it is not unusual for other physicians and medical specialists, besides the employee’s treating physician, to be involved in making medical assessments about the extent of the employee’s illness or injury. These medical examiners typically are asked for a “second opinion” in cases where there is some dispute over the treating physicians findings or assessment of the prognosis or prescribed treatment of the injured employee.

Vocational Rehabilitation Counselor
The Vocational Rehabilitation Counselor (VRC) is the person at the Insurance Carrier who has the responsibility to coordinate the provision of all vocational rehabilitation benefits for an employee.

Qualified Rehabilitation Representative
Not every case will involve a Qualified Rehabilitation Representative (QRR). Such professionals are generally only involved when the employee is seriously injured and will need some special skills assessment or retraining in order to return to his/her current job or another job. The QRR will be extremely interested in the specific job duties that the employee is expected to perform and any requirements that may be needed to accommodate the employee in order for him/her to resume these job duties.

This information will be needed so that the QRR can develop a comprehensive rehabilitation plan for your employee to return to work. Only if the employee’s disability clearly precludes return to the normal and customary duties, will the vocational rehabilitation plan be directed to other types of employment.

Return-to-Work Coordinator
As indicated, earlier, this individual will work for your employer and may be the same individual as the Claims Coordinator. The role of the Return-to-Work Coordinator is to assist the employee and the supervisor to explore all alternatives for light duty, job restructuring and reasonable accommodation, so that the employee can return to work as soon as it is medically feasible to do so.

Applicant’s Attorney
The “applicant’s attorney” is the injured employee’s attorney. Generally speaking, you will not be communicating directly with the employee’s attorney. When an employee is represented by an attorney, communication becomes very formal and it is handled by the staff at the Insurance Carrier.

Identifying the Essential Functions of the Job

Duty Statement/Job Description
It is unlikely that the duty statements that you currently prepare for your employees will be adequate to assist the workers’ compensation professionals in the event that one of your employees is injured on the job.

General duty statements do not contain the level of detail about the physical/mental requirements of the job that would assist a treating physician or a vocational rehabilitation counselor to determine what, if any, job restrictions the injured employee may have when he/she returns to the job.

For example, the treating physician may need to know how much walking, sitting, lifting, typing, etc., is needed to perform the required duties. If a certain job can be done in various positions (either standing or sitting), then such information may be very helpful to the physician in determining if the employee can return to work.

If a certain task is absolutely essential to performing the duties and no physical variation is possible, then the physician will make a determination if the injury precludes performance of that task.

For example, if a police officer breaks his/her trigger finger and has restriction in the ability to shoot a gun, which is determined absolutely essential to successful and safe performance of the job, then the doctor will conclude that the employee is incapable of returning to duty until the finger is fully healed.

Only the supervisor can “paint a picture” for the treating physician so that he/she has a clear understanding of what it physically and mentally takes to get the job done. Therefore, you may be asked to assist in preparing special, detailed, job descriptions for employees who are injured. Your Claims Coordinator or the Claims Adjuster should be able to provide you with sample job descriptions and assist you to develop them as required.

Knowledge of the Job Demands
It may not surprise you to know that most supervisors have no idea what are the actual physical and mental demands of the jobs performed by their employees unless they have performed those jobs personally.

Therefore, it may be important for you to have your employees identify the physical and mental demands of their jobs BEFORE they are injured. This is especially important for employees who must lift heavy weights in the course of their duties (whether the weight is an object in the stock room, or a patient in a hospital).

Vision, hearing, and physical agility requirements may be equally important to successful job performance. Mental abilities such as good recall or organization skills are critical in some jobs, but not in others. In any event, you should know the demands of each of the jobs in your unit in sufficiently precise terms so that you can describe them with a reasonably high degree of accuracy.

For example … “the employee must be able to walk approximately ten feet, moving (note: not carrying) a 30 pound box, 12-15 times each day” … or … “the employee must be able to type (sitting or standing?), from printed text, for 90 minutes straight without a break” … or … “the employee must be able to concentrate and verbally answer customer information requests, using data from a computer terminal, continuously for periods up to one and one-half hours.”

Responding to Inquiries/Requests

Whether the inquiry related to the accident investigation or the employee’s job duties, you should respond promptly to any inquiry related to a workers’ compensation claim. In many cases, the time frames for response are set in State labor Code statute and delays can result in serious penalties against the employer. Delays can cost the employer many extra dollars in benefits and services that may not be necessary. In all cases, your input is essential to effective claims management.

Working with Employer Workers’ Compensation Experts

As stated early, your employer has expert staff assigned to assist you with every aspect of the workers’ compensation system. Work closely with them and provide them with the information and support that they need to do a good job for you, for your employee and for your department.

Of particular importance is your willingness to cooperate with the Return-to-Work Coordinator in designing a light duty assignment for your injured employee or possibly a permanent restructuring of a job to accommodate the employee’s successful return.

You must attend all Return-to-Work Committee meetings where your employee’s case is scheduled for discussion. It is essential that you maintain an open mind to suggestions that others have regarding ways in which you can modify physical layout or operating procedures in order to increase the probability of a successful injured employee placement.

Keeping the Injured Worker Informed of Progress

The only person who is more “in the dark” about workers’ compensation than you are is your injured employee. Keep him/her informed regarding efforts that are being made to provide benefits and services. Let the employee know that you are working hard to make it possible for him/her to return to work as soon as possible. Keep all communication positive and sincere.

Record-keeping Requirements

At some point, it may become necessary for you to document your efforts regarding accident investigation and/or return-to-work efforts. Make notes regarding contacts with the employee, department staff, other workers’ compensation professionals, physicians and counselors. In the event that you are ever requested to testify before the Workers’ Compensation Appeals Board, your notes regarding dates, contacts, and actions will prove invaluable.

The information and forms contained in this feature are intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.

April 1, 2000July 10, 2018

Request for Reasonable Accommodation

The employee completes this form to make their accommodation needs known to the employer.

CONFIDENTIAL INFORMATION, ACCESS LIMITED TO:

REQUEST FOR REASONABLE ACCOMMODATION

Applicant ( ) Employee ( )

Name: _______________________	Date: ________________
Position: _______________________	Dept.: ________________

This information is voluntary and will in no way influence an employment decision. If you are an individual with a disability who needs an accommodation, _________________ is committed to providing reasonable accommodation to qualified individuals to help them participate in pre-employment testing and/or perform the job satisfactorily and safely. Please assist us by completing this form and specifying any accommodation you may need. Your information will be kept confidential and used in compliance with applicable law and _______________________ policy on Reasonable Accommodation.

Describe the limitation(s) or condition that this request is based on:

Do you require assistance for pre-employment testing?
Yes or No
If yes, please specify what accommodation you require:

Which essential job task or tasks are you unable to perform without reasonable accommodation?

Which marginal job task or tasks are you unable to perform?

Identify any accommodation that would assist you in performing the essential job tasks in question. (This can include special equipment or methods, changes in the physical layout, etc.)

The information and forms contained in this feature are intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.