Recently a court case was brought to my attention. A worker for the US Postal Service had filed a complaint with the EEOC that she was discriminated against for having a disability. This employee initially suffered a non-work related injury to her leg and was out of work for some time. She then returned to work and suffered a work-related injury to the same leg. Subsequently she was given a “piece of paper” by her physician that stated she was released to return to regular work.
Now we know the USPS has been under pressure in many ways to improve their bottom line by adding services, added home delivery days, etc. But we also know, they like any business, have rights under employment laws including the right to make sure an employee is safe and productive in performing the essential functions of their job. The employer also has a right to obtain further information prior to allowing an injured worker to return to work even with the physician’s release. The USPS decided to use that right.
Due to the series of events in this case, Fit for Duty testing was requested by the employer as there was a reasonable basis to believe that the employee’s medical condition would prevent the employee from performing essential job functions or will pose a “direct threat” to the health and safety of the employee or others. The employee was asked to provide further medical clearance and a Fit for Duty functional capacity exam was requested. For various reasons it took over a year for the testing to be completed and the employee opted for early retirement prior to completion of the process.
The former employee filed a claim with the EEOC that the USPS had discriminated against her because of her disability. The courts found that the employer had a right to due diligence in determining the employee’s fitness for duty. Furthermore the testing demonstrated the employee had work-related deficits and did not meet the physical abilities needed to safely perform the job functions. Since she had retired prior to the opportunity for an interactive dialog, the question of whether reasonable accommodations were available was not a consideration for this case.
Needless to say the employee was not happy with the outcome and appealed. Again the courts upheld the decision in favor of the employer and reiterated a physician’s medical release to return to regular work does not override the employer’s rights to ascertain an employee’s fitness for duty.
So what are your options if a Fit for Duty exam discovers the newly released employee cannot qualify for return to regular duty? You could send the employee back to the physician and continue the claim process, but why? The medical release for return to work should close the claim but the employee is at significant risk of re-injury if work-related deficits are still present. Many employers will bring injured workers back and reduce their job demands for a period of time or permanently for fear that they will be re-injured which causes hardships on other employees. This practice frequently leads to a decrease in productivity and morale. Some employers may opt to terminate the employee based on their inability to safely perform all job functions. The risk here is that the decision to terminate was based on their faulty assumption that the medical release meant the employee could safely perform all job functions and should be held to that standard.
The best case scenario for all parties uses a policy-driven risk management strategy as outlined below:
- Medical clearance is received
- Fit for Duty prior to RTW
- No deficits – return to regular work
- Work-related deficits identified
- Provide modified duty and establish timeline for return to regular work
- Refer to Work Conditioning and repeat FFD at established intervals
- Improvement noted – continue work conditioning
- If no improvement or plateau – proceed to interactive dialog and ADA consideration
- Improvement noted – continue work conditioning
- Consider availability of reasonable accommodation
- If available – repeat FFD with accommodation in place
- If not available – consider job transfer, use of other benefits, and, last resort, termination
The bottom line of using this process has shown significant savings if the injured worker can be brought back to their regular job 3 days sooner than using the worker’s comp model.
So for those of you out there who aren’t sure whether you should be doing functional assessments, it might be time to follow the example of the Post Office. Don’t assume a piece of paper takes away your risks or your right to hire or retain employees who can safely and productively perform the essential functions of their jobs.
Forgive me for channeling Ruth Ann…..and that’s the truth!
-Submitted by Debra Lord, Co-Founder of Job Ready Services