Integrating Your Temporary Duty Policy In With Your Leave Of Absence Policy Will Dramatically Reduce Workers Compensation Premiums And Indirect Workers Compensation Costs

There are at least two critical policy statements that directly impact the sucessful implementation of your organization's workers compensation disability management strategy:

• Your Leave Of Absence Policy, and
• Your Temporary Duty Policy.

Many organizations fail to recognize that these two policies are actually interrelated. The reason is very simple: An employee’s refusal to accept a bona fide temporary duty offer and not come back to work can be considered an unexcused leave of absence. By implementing these policies consistently and in accordance with state and federal laws they give your organization a significant degree of leverage over employees who chose not to comply with the organization’s claim management procedures, particularly those that apply to work-related disabilities.  This strategy will directly affect the cost of the disability injury, minimize workers compensation cost, and significantly curtail lost productivity.
 

The Family Medical Leave Act (FMLA), the American With Disabilities Act (ADA), and state employment laws require employers to provide leave for workers under certain conditions but give employers some discretion over how to administer that leave. Establishing or modifying leave policies that are consistent with state and federal laws and implemented uniformly can help play a large role in defining which employees may take leave, as well as how and when they can take it. It is essential that your organization have leave of absence policies and procedures that coordinate its lost-time claims with the FMLA, ADA and other state disability laws.

Establishing a Leave of Absence Policy serves many purposes. From a philosophical standpoint, a Leave of Absence Policy serves the same aim as other personal policies and practices – to give employees a good working environment while at the same time ensuring that the employer’s productivity and financial standards are maintained. From a practical standpoint a Leave of Absence Policy clarifies employer and employee rights and responsibilities regarding leave, rationalizes leave decisions by explaining why certain decisions are made so that they do not appear arbitrary, and provides a standard operating procedure all managers can use to make those decisions. Also, if no Leave of Absence Policy exists then past practices may be interpreted as policy.

Employers should keep in mind the “big picture” when formulating or revising their leave of absence policies, and consider the following general principles:’

• The employer must provide notice of its leave of absence policies as required by the FMLA and state leave laws;
• Leave of absence policies should be applied consistently to all similarly situated employees and reviewed by legal counsel;
• Leaves may be granted without pay, although employees may use any accrued paid time off during a leave to offset the lack of compensation;
• Benefits may be continued during a leave of absence and, in some instances, federal and state law require continuation of benefits during the leave; and
• Employees usually are entitled to reinstatement of their positions on return from an approved leave.

Second, clear communication is a critical objective of a Leave of Absence Policy. Compliant organizations communicate their practices and procedures to the managers who are expected to implement them. They also communicate the same to employees who are covered by them. Effective communication ensures that all parties know:

• What leave is available, and for what reasons;
• How much leave is available;
• Who is entitled to leave;
• How the employee is expected to request leave (i.e., how much notice is needed, who must be told, what medical certification is necessary, etc.);
• How the employer will respond to leave requests;
• What to expect during and after the leave (i.e., continuation of benefits, restoration rights, etc.); and
• The consequences of not satisfying the organization’s leave of absence policy.

Third, managers and supervisors should understand that although policies normally apply to non-union personnel, the terms of their collective bargaining agreements determine the wages, hours and working conditions, including benefits and leave of absence policies, of covered employees. Collective bargaining agreements outline the policies pertaining to leaves of absence for union employee and, in some cases, mirror the employer’s general policies.

Fourth, a decision must be made as to who will be responsible for implementing the Leave of Absence Policy. In large organizations the responsibility for all personnel maters, including granting and denying leave requests resides in the Human Resource department. There may also be formal management committees of policy review committees that regularly review the organization’s policies and practices. In smaller organizations, however, there may not be a Human Resource Manager. Instead, front line managers and supervisors implement the leave of absence policy. Employers should clearly delineate who is responsible for making leave decisions and not allow decisions to be made haphazardly across organization lines. Designating an employee to coordinate leave of absence policies ensures consistent application, minimizes the influence of personality and favoritism in leave decisions, and reduces the changes of unfair practices or discrimination charges.

Finally, the organization should review its Leave of Absence Policy on at least on an annual basis. Leave of absence policies, like most workplace policies, are subject to change. They are prompted by developments in employee relations, the business environment, revisions in collective bargaining agreements, and changes in state or federal leave laws.

Employers generally are not required by the ADA or workers compensation laws to enact policies that provide temporary duty positions for employees. In fact, many employers would rather not deal at all with the complexities of meeting ADA requirements to use temporary duty positions as a reasonable accommodation for employees with disabilities. This approach is neither the employer’s nor the employee’s best interest. From the employer perspective temporary duty jobs facilitate employee return to work where medically permitted. Generally employees recover more quickly and completely when they are returned to work as soon as practicable. This has the effect of reducing claims for total or permanent disability. If implemented properly it is a win-win.

Guidelines For Establishing An Effective Temporary Duty Policy

The difficulty in creating a Temporary Duty Policy lies in the inherent conflict between applicable laws and regulations.  Most short-term and long-term disability programs and workers compensation laws terminate benefits when an employee is able to return to some form of temporary duty. A decision to accept temporary duty may or may not affect the employee’s wages, depending on the law involved. The following is a brief overview of how the applicable employment laws affect the implementation of a Temporary Duty Policy:

• Under the ADA, an employer need not create a temporary duty position for a non-occupational injured employee with a disability as a reasonable accommodation. However, the employer may create temporary duty positions for occupational injured employees on a case-by-case basis and exclude non-occupational injured employees from these jobs without violating the ADA. But, if an employer reserves existing temporary duty positions for employees with occupational injuries it must consider reassigning a non-occupational disabled employee to such positions as part of the reasonable accommodation process. The positions must be vacant and the employee with a disability must be qualified for it. An employer that has only temporary duty positions need not provide regular, long-term placement in them for employees with disability-related work occupational injuries. Wages paid may be at the lower rates applicable to the positions, unless the employer pays at the higher rate for other reassigned employees.

• Under the FMLA an employee eligible for FMLA leave may reject an employer’s offer of temporary duty work and remain on FMLA leave. The employer may require that an employee be temporarily transferred to an available alternative position for which the employee is qualified when the leave is foreseeable and based on planned medical treatment. An employee may voluntarily accept temporary duty offered under workers compensation laws. The time spent in the temporary duty position may not be counted against the 12-week leave allotment, but can could against the employee’s temporary duty restoration rights. For example, if an employee takes six weeks of FMLA leave for his or her serious health condition and then spends six weeks on temporary duty, the employee still has a right to restoration under the law. If the employee instead takes six weeks of FMLA leave for a serious health condition and seven weeks of temporary duty, the entitlement to restoration expires.

• Under the majority of workers compensation laws, an employee who is injured on the job and has a temporary total disability may not reject an offer of temporary duty without losing continued benefits. Lost-time payments cease when the employee’s recovery has progressed to the point where the employee’s earning power is restored to that at the time of injury or supplemental lost-time payments are made according to a schedule if the earning power is only partially restored. Those payments can continue until the employee is stable. There are limitations typically on the number of weeks an employee is eligible for such payments, but in each instance the limitations may be exceeded on good cause shown by the employee.

• The FMLA does not supersede collective bargaining agreements that provide greater rights. In many cases, collective bargaining agreements permit transfer to a temporary duty assignment and, as such, to not violate a collective bargaining agreement. The ADA’s reasonable accommodation requirement does not include giving an employee special placement and job protection rights in violation of a seniority system negotiated in a collective bargaining agreement.

In preparation for the development of its Temporary Duty Policy the organization should carefully review its employee handbook, disability policy, absentee policy, existing temporary duty policy, collective bargaining agreements (if applicable) and any other policies and procedures that may come into play.

The Temporary Duty Policy should contain the following components at a minimum:

1. It should be in writing;

2. It should clearly spell out the responsibilities of the employer and the employee;

3. It should clearly explain the entire Temporary Duty process;

4. It should clearly stipulate that the employee is expected to comply with the Temporary Duty Policy, including a requirement that they call the Claim Coordinator on a specified basis and that a violation of the policy may be considered a violation of the organization’s Leave Of Absence Policy.

5. It should make it clear that the tasks assigned to the employee are, in fact, temporary. It is strongly recommended the Temporary Duty Policy state that the temporary work assignment can be terminated when any of the following occur:

·         It is no longer available;

·         When the treating physician has determined that the employee will not be returning to work;

·         When the employee obtains a full release to return to regular work, or

·         A specified number of days.

6.     It should comply with all applicable Federal and state employment laws.

The success of the organization’s Temporary Duty Policy depends on the support and direction from senior management, how well this policy is complies with Federal and state employment laws (FMLA, ADA, etc.), and how well the policy is communicated. A policy statement written and publicized throughout the organization is an effective means of providing guidance and demonstrating this support. Once completed the Temporary Duty Policy should be included in all of human resource documents, including the organization’s employee handbook and other human resource policy and procedures. In the event this policy is developed during the employee benefit plan year the organization should prepare addendum to its handbooks and give each employee a copy. Since this is such an important policy the organization may also want to consider reviewing it at employee meetings, safety committee meetings, and any other formal employee meetings. Also, a formal announcement should be included in the organization’s newsletter and similar internal publications. In short, use any and all means possible to announce and communicate the Temporary Duty Policy.

For a specimen copy of a Leave of Absence Policy and Temporary Duty policy please email us at info@CompEraser.com.

CompEraser provides a number of additional on-line resources to help your organization formalize, implement and monitor its Temporary Duty Program in full compliance with state and federal laws. Please visit our website at www.CompEraser.com.