Compliance Strategies and the Role of the Interactive Process
Bryon Bass
SVP, Workforce Absence, Sedgwick
When it comes to employee injuries and illnesses, the intersection and overlap of state workers’ compensation laws with federal laws such as the Americans with Disabilities Act can present seemingly endless questions. While there are seldom easy answers, a basic understanding of these regulations is helpful in addressing employee needs and fulfilling employer obligations.
Workers’ compensation laws vary by state and are designed to assist employees who suffer a job-related injury or illness. These laws ensure injured employees receive access to medical care and some degree of wage replacement for time off work due to the incident.
The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination against individuals with a disability. With respect to the workplace, it is designed to protect those who can perform the essential functions of a job with or without reasonable accommodation. Under the ADA, employers are required to provide reasonable accommodations to qualified individuals with disabilities unless doing so would pose undue hardship on the organization.
Complications and compliance issues arise when an employer is inconsistent or applies different approaches to occupational versus non-occupational injuries or illnesses. For example, an opportunity to continuing working should be made available regardless of whether an employee strained their back restocking shelves at work or undertaking a weekend home improvement project. Employer policies that require injured employees to be free of restrictions before returning to work are in violation of the ADA. Using a 100% recovery standard removes the opportunity for the employee to pursue reasonable accommodation.
A central element of ADA compliance revolves around the concept of the interactive process and how it applies to stay at work/return to work. The interactive process is a way for an employer to determine if an employee has a disability and if there are reasonable accommodations that can be made to accommodate the condition. This typically consists of a conversation between the employer and the employee to address the injury or condition, potential restrictions or limitations, and whether an accommodation will likely be successful.
Employers must engage in the interactive process when they become aware that an employee has a disability or has requested an accommodation. There may also be an obligation if the employer is aware or should have been aware that the employee has a condition that is causing problems with work. Additionally, when an employee has exhausted all leave, whether related to an occupational or non-occupational occurrence, employers are obligated to initiate the interactive process.
One of the best resources employers can consult to illustrate how to conduct the interactive process is the Job Accommodation Network (JAN), a service of the U.S. Department of Labor. JAN outlines the following six steps:
- Recognize an employee’s accommodation request and acknowledge the duty to initiate the interactive process.
- Gather the information necessary to assess the employee’s situation such as their job description, healthcare assessment, and any related job restrictions.
- Explore accommodation options and what type of environmental accommodations could be made that would be helpful to the employee.
- Choose an accommodation or ask an employee which of the identified accommodations is preferred.
- Implement the accommodation and ensure it works as intended.
- Monitor the accommodation to ensure it works effectively and be prepared to address new developments as they arise.
Managing workforce absence requests and accommodations is challenging. Occupational versus non-occupational injuries present unique complications and circumstances. Employers must remain informed on current laws and regulations while maintaining adherence to existing organizational policies and procedures. Consistency is essential to ensuring compliance with overlapping state and federal regulations. For more information, visit the Job Accommodations Network website www.askjan.org
*The views and opinions expressed in the Public Risk Management Association (PRIMA) blogs are those of each respective author. The views and opinions do not necessarily reflect the official policy or position of PRIMA.*
By: Bryon Bass
SVP, Workforce Absence, Sedgwick
Bryon is SVP, Workforce Absence with Sedgwick. In this position, he is responsible for overseeing disability and absence management product standards and compliance, quality, and disability financial services. Previously, Bryon was the director of integrated disability management at Pacific Gas and Electric where he oversaw companywide integrated delivery of disability and absence management services, comprised of self-insured/self-administered workers’ compensation, fitness for duty, leave of absence, accommodation and time-off programs.
Bryon has a wide range of experience in health and productivity management, both from an employer HR and benefits role perspective as well as third party administration. His responsibilities have included client relationships, service operations and product management for disability and absence management products. Bryon has also been active as an author and seminar leader dealing with topics including: short/long-term disability, FMLA/leave of absence, paid leave, corporate health and wellness strategies, workers’ compensation, and integrated disability program design.
Bryon earned a Bachelor of Science in business and a minor in e-business, University of Phoenix. He also holds a designation as a Certified Leave Management Specialist.
