Exploring the complexity of a remote employee’s work state

December 11, 2023

Share on LinkedIn Share on Facebook Share on X

Remote work has increasingly become the norm — in fact, it is at an all-time high. Between 2019 and 2021, the number of people primarily working from home tripled from 9 million to 27.6 million. For many, it was unexpected just how strongly the pandemic would impact the commuting landscape in the United States. 

Regardless of work-related circumstances, it is integral to employment law compliance that an employee is governed by the correct state’s laws. An influx of employees switching to remote and a confluence of other complex factors muddies the waters. This shift alone poses unprecedented challenges for absence management professionals. 

Consider an employee named Sofia who works remotely from her home in Wisconsin for a tech company. Sarah’s supervisor, Barbara, works from her home in California. The company operates as a remote-only organization and has no physical headquarters. What, then, is Sarah’s work state? Wisconsin? California, where Sarah’s supervisor directs her services from? Or none of the above? The answer is complicated.

Why work state matters

Each state has different laws and requirements around unemployment, payroll taxes, workers’ unemployment and other employment law issues. Each worker must comply with their applicable state laws. 

In 2004, the U.S. Department of Labor’s employment and training administration advisory system updated localization of work provisions, or principles for determining where wages should be reported when work is performed entirely in one state or in a number of different states. “Localization of work” provisions are additional provisions of states’ unemployment insurance (UI) laws. 

This was the first update since guidance for interpreting state provisions on “localization of work” was issued in 1952 — spurred by seismic employment shifts including the advent of the internet, and the September 11, 2001 terrorist attack that required temporary mass-relocation to New Jersey.

Determining an employee’s work state

In general, under state unemployment laws, workers’ wages are reported to the state where the work is performed, and the laws of that state govern. For Sarah, that would mean Wisconsin. But much of the time it is not that simple.

Though states utilize various approaches in making this determination, many use the unemployment of localization of work (ULOW) test, in which an employer answers questions about whether an employee’s service is “localized” in a specific state.

A service is “localized” within a state if it is either performed entirely within a state, or performed both within and outside the state, but services outside of the state are temporary, transitory in nature or consists of isolated transactions. If true, the employee’s service is localized in that state, and that is their governing work state. However, if the above is not applicable, a work state determination must still be made. The following questions then must be applied in this order:

– Is any part of the service performed in the state in which the company’s base of operations is sited?

If not, 

– Is any part of the service performed in the state from which the service is directed or controlled?

If not,

– Is any part of the service performed in the state in which the employee lives?

Let us utilize this test considering the opening scenario: Tech firm employee Sarah, a Wisconsin resident, and receives all her work assignments and products via internet communication from her boss, Barbara, in California. 

No,

– the company is fully remote and has no base of operations. 

No,

– no part of Sarah’s services are performed in California, the state from which the service is directed or controlled. 

Yes,

– Sarah is performing all employment duties in Wisconsin, the state she lives in. Despite her supervisor being based in California, Sarah’s work state is Wisconsin, and her employment is subject to Wisconsin law. All wages from the date she began telecommuting from Wisconsin should be reported to Wisconsin.

Important considerations

Determining an employee’s work state may not work the same way if a request for leave under the Family and Medical Leave Act (FMLA) is involved. The law has specific guidance for evaluating whether an employee’s residence officially constitutes a work site. 

Under FMLA, in the case of an employee who reports to, or receives assignments from, a different location, their personal residence is not a work site. Instead, it would be the state in which his/her assignments come from. In tech employee Sarah’s case, her work state would be that in which her boss is located — California. 

It is the employer’s responsibility to thoroughly review their processes around determining an employee’s work state and ensure its accuracy to avoid residual effects for both parties down the line. Employers should carry out a comprehensive review, particularly if none have occurred since the pandemic shifted the workplace landscape.

This content was originally published by the Disability Management Employer Coalition (DMEC) as part of the Absence Matters column.

Learn more > explore our absence management solutions.

FMLA and the pitfalls of overtime

December 4, 2023

Share on LinkedIn Share on Facebook Share on X

A recent article discussed how workers are increasingly being asked/required by employers to work overtime. Meanwhile, those same employers are facing challenges when it comes to FMLA. 

While organizations reap some benefits when employees work beyond their typical hours, doing so introduces several cons to consider as well. As we approach the holiday season and employees clock more hours, it’s as good a time as any for employers to review how overtime and FMLA works — and what this means for employees. 

FMLA entitlement 

Before we address the overtime issue, we need to consider how FMLA calculates the amount of entitlement available to an employee. §825.205 (b) Calculation of Leave outlines how leave is to be calculated. Per the regulations, an employee’s workweek is the basic foundation of the leave entitlement. For example, if an employee works five days per week, eight hours per day for a total of 40 hours per week, the employer will calculate their available entitlement by multiplying the employees’ scheduled hours by the maximum number of weeks available under FMLA. In this example, an employee working a 40-hour week would have 480 hours available to them (40 hours x 12 weeks). Whereas an employee who works 30 hours a week would receive 360 hours (30 hours x 12 weeks).

Overtime considerations 

When considering overtime, let’s look at §825.205 (c) Overtime, which details how we address overtime as it relates to the amount of entitlement available. Per the regulations, if an employee is regularly scheduled, that time can count towards FMLA entitlement. For example, if an employee is regularly scheduled for 48 hours per week, the amount of available entitlement would be available to the employee would be 576 hours (48 hours x 12 weeks) and if they are unable to work the overtime because of a qualifying FMLA reason, it would count against their entitlement. 

The key here is to determine whether the overtime is regularly scheduled or voluntary. Some employers are requiring their employees to work mandatory overtime because of staffing shortages. These shifts are not optional and are being considered part of an employee’s normal workweek. That means if an employee takes FMLA leave, that mandatory overtime could be eligible for FMLA coverage. Conversely, if an employer asks an employee to voluntarily work overtime, meaning that it is not regularly scheduled, and the employee is unable to work the requested overtime due to an FMLA reason, it would not be covered by FMLA.

Next steps for employers 

Employers should recognize how they approach overtime when they are using it to schedule employees. The U.S. Department of Labor (DOL) issued an opinion letter earlier this year that addresses how employees could use intermittent or reduced schedule leave to avoid working mandatory overtime and have it protected under FMLA. This can have a significant impact on industries like healthcare and public safety where mandatory overtime is a common practice. If an employer says that scheduled overtime is voluntary to avoid adding into FMLA entitlement calculations, they cannot hold that against an employee should they choose to not work the overtime. 

While the use of overtime is a common business practice in several industries, employers should be aware of the impact these extra hours may have on their employees, not only from a compliance standpoint but their mental well-being as well. Additionally, employers should consider their obligations under FMLA and the potential for employees to use overtime hours to extend their FMLA entitlement indefinitely from year to year. 

Learn more > Explore our disability and absence management solutions or contact [email protected].

Source: NBC news, November 2023

A new day has dawned: what employers need to know about religious accommodations

November 9, 2023

Share on LinkedIn Share on Facebook Share on X

A recent Supreme Court case will have wide-ranging implications for employers as it relates to religious accommodations. The ruling established a new standard for employers to meet if claiming that a requested religious accommodation would unduly burden the organization if granted. 

Out with the old

Under Title VII of the Civil Rights Act of 1964, an employer must provide a reasonable accommodation for an employee’s sincere religious practices unless that accommodation would pose “an undue hardship” on the employer. In 1977, in TransWorld Airlines v. Hardison, the Supreme Court clarified “undue hardship” in this context, ruling that employers could avoid having to provide an accommodation if doing so would impose “more than a de minimis cost” — defined (by dictionary) as something trifling or of little importance — or burden.

So began the adoption of the “de minimis cost” test as a burden, the valuative meaning of which has long been argued over and speculated about. In practice, the de minimis cost test as burden proved easy for employers to overcome; any minimal cost claimed as an undue hardship generally sufficed. Between 1977 and a recent ruling, employees were rarely granted religious accommodation requests due to the low burden. 

But in the 2023 case of Groff v. DeJoy, the Supreme Court, in a unanimous decision, struck down the de minimis standard. Instead, the court said, Title VII requires employers who deny such religious accommodation request to demonstrate that the accommodation would result in “substantial increased costs in relation to the conduct of its particular business.” Under this heightened standard, it will be significantly more difficult for employers to deny religious accommodation requests. 

In with the new 

According to the U.S. Equal Employment Opportunity Commission (EEOC), 2,111 individuals filed charges in 2021 alleging religious discrimination. In 2022, that number jumped to 13,814. Much of this 600% increase can likely be attributed to employees challenging their employers COVID-19 vaccine mandates. Regardless, the increase, in addition to this transformative Groff ruling, leads to the question: what will this new landscape look like? How will it affect employers?

Employers, as well as absence management professionals, must grapple with the reality that religious accommodations may be requested more often. And unlike before, those requests may now be exceedingly difficult to deny. 

For one, how can an employer confirm if a religious accommodation stems from a sincerely held belief? Employers who argue against this are in for a tall task – how do you prove such a thing? 

Another possibility: an employer may assert that the accommodation will put unduly burdensome financial constraints (“substantial cost”) on the organization. However, this approach should be taken cautiously because, in doing so, an employer will have to demonstrate a significant expense regarding its business – and this will vary greatly from organization to organization depending upon the size, structure and operational workings of each business. For example, allowing an employee to miss work for a religious observation might pose a significant expense to an employer with 17 employees. However, a multi-billion-dollar corporation with thousands of employees might struggle to prove that a similar request would be significant for them. 

One thing that most likely won’t be different for both of those organizations: neither will want to will subject its financial books to inspection. But arguing that the request is cost-preclusive will do just that should the litigation continue. 

Title VII is not ADA

While “undue burden” is a term used in both employee disability (under the Americans with Disability Act (ADA) ) and employee religion (Title VII ) contexts, the laws are different and provide different thresholds for employers to meet when asserting that an employee’s request can’t be granted. As discussed earlier, religious accommodations under Title VII must cause substantial increased costs in relation to the conduct of its particular business to be unduly burdensome. 

Compare this to undue burden in the disability accommodation context. The ADA requires employers to show not only financial difficulty, but also that the request would be “substantial, or disruptive, or would fundamentally alter the nature or operation of the business.”

Thus, while it will be years before we know how courts will interpret the meaning of substantial increased costs in the Title VII context, the wording appears to indicate that it will still be a less daunting challenge than in the ADA context. Therefore, employers must be careful not to discriminate against an employee’s religious beliefs by approaching religious accommodations through an ADA lens. There must be a separate standard for each type. 

Tips for employers 

Looking ahead to 2024, employers should review their existing accommodation policies and/or consider updating them to ensure compliance with the new standard. Upon receiving a religious accommodation request, it’s advisable to consult with legal counsel throughout the process. Education and training can help ensure that human resource professionals and front-line managers and supervisors are aware of the heightened burden and how to respond to employees appropriately. 

And, as with all accommodation requests , documentation of interactions surrounding religious accommodation requests is of utmost importance. And, in the end, due to the sensitive nature of such requests, employers should treat each case individually – as well as approaching each case with curiosity rather than judgment.

Showing vulnerable customers how caring counts in claims

September 21, 2023

Two people holding hands.
Share on LinkedIn Share on Facebook Share on X

For anyone dealing with a property damage loss, it can be inconvenient at best and traumatizing and life-altering at worst. But for those who are already vulnerable, the experience can be exponentially more difficult.

In commemoration of World Alzheimer’s Day, here I will highlight some of the added challenges for those with dementia and other vulnerable groups as they navigate the claims process and how the insurance industry can take optimal care of these individuals when they need it most.

Identifying and accommodating vulnerable customers

Vulnerable individuals are especially susceptible to harm due to their personal circumstances — particularly when a service provider does not act with appropriate levels of care, according to the UK’s Financial Conduct Authority.Though it is possible for any person to become vulnerable, there is an increased risk for those with characteristics of vulnerability, such as physical or mental health conditions, cognitive impairment, language barriers, financial distress or those who are digitally excluded. Life events, such as bereavement or losing a home and navigating temporary displacement, can also render a person vulnerable.

These groups may have additional needs that could limit their capability to make decisions or represent their own interests in the course of a claim, presenting a greater risk of harm. Such circumstances require us to dig deeper and pinpoint further means of identifying, supporting, and protecting these vulnerable customers.

To support vulnerable customers, we must think creatively — and outside the box. Everyone handles circumstances differently, necessitating an individualized level of care. Whether a policyholder is living with sight loss, memory loss, depression or anxiety, claims professionals must show added empathy and understanding, listen intently, and deliver focused, one-on-one assistance.

In our increasingly digital world, those who are not digitally engaged — whether due to financial constraints, distrust or lack of access — are left in a vulnerable position. It is critical to provide tailored support in navigating digital aspects of the claims process to prevent digitally excluded customers from being left behind.

We aim to create a supportive environment for policyholders to disclose any potential or actual vulnerabilities so we can best support their needs. In some cases, insurers will advise us of a customer’s vulnerability or we’ll receive a disclosure advising that a customer is not coping well. If, for example, we see a homeowner disengage and communication deteriorating during the claim, it may indicate a mental health struggle. At that point, the claims handler can engage our team of customer care specialists.

Tailoring person-to-person support

At its foundation, supporting vulnerable policyholders is about understanding their individual needs, responding to those needs, and then monitoring and assessing whether our tailored support improves the customer’s life. Because there is no one-size-fits-all, customer accommodations vary greatly.

Support can include providing comfortable lodging while repairs are made to the damaged home. If temporary relocation is too drastic or disruptive a change for a particular customer, their home can possibly be tailored to instead make life easier. In the case of one customer with physical disabilities, our care specialists arranged for the creation of a temporary flat — complete with a kitchen and bathroom — and tweaked the surroundings to allow her to safely navigate her home environment.

Damage to a home affects the entire family, and vulnerable children need support, too. In such cases, we work in collaboration with parents to lighten their load where we can. For children with autism, for example, routine changes can be extraordinarily difficult. One small act, such as helping a child access the kind of tablet or gaming system they normally use, can help alleviate pressure among the family unit during an already stressful time.

Caring for customers with dementia

Other circumstances requiring probable intervention are customers experiencing dementia, a group of symptoms affecting memory, thinking and social abilities that affect approximately 55 million people worldwide. Among the conditions that can cause dementia is the degenerative brain disease Alzheimer’s. With memory loss being one of the disease’s premier symptoms, the complications of a claim combined with dementia symptoms can upend a person’s routine and functioning in a multitude of ways.

We once handled a flood surge claim for a customer living with dementia who lived by herself and whose family could only visit occasionally. Despite experiencing varying levels of confusion day to day and her ground floor being severely damaged by floodwaters, she was adamant about remaining in her home.

In accordance with her needs and wishes, our team created a comfortable living space on the house’s first floor and installed a new door to ensure privacy. To prevent the customer from forgetting contractors’ scheduled visits, we erected a large wall calendar detailing key dates and instructed the contractors to tally each visit. Additionally, we liaised with the repair contractors on any queries.

Oftentimes, supporting an adjusting team in helping a vulnerable customer means assuming the role of single point of contact. It simplifies the process — for both sides involved — when the customer only speaks to one person about their claim. Adjusting teams can focus on the technical and procedural claim issues, while care specialists can devote their efforts to the policyholder’s specific needs.

At Sedgwick, we believe everyone should have access to the same outcomes, regardless of their level of vulnerability. I am very proud of our groundbreaking efforts to identify vulnerable customers early in the claims process and to adapt our services to do what’s right for the people who depend on us.

> Learn more — read about the Insurance United Against Dementia initiative (with which Sedgwick is proud to partner) and the vital work of our UK specialist care team in supporting policyholders with dementia and other vulnerabilities

Accommodating cognitive limitations in the workplace

October 27, 2022

Share on LinkedIn Share on Facebook Share on X

We know from scientific studies and anecdotal evidence that “brain fog” is among the most common symptoms of long COVID. According to the Solve Long COVID Initiative, 58% of people with post-COVID symptoms lasting seven months or longer have experienced brain fog — cognitive impairment significantly affecting everyday functioning.

With many in the workforce struggling to adapt to life with brain fog and other lingering COVID-19 symptoms, there is renewed interest in how employers can best accommodate workers with cognitive limitations.

Defining factors

The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to qualified individuals, unless doing so poses an undue hardship. A reasonable accommodation is any change to the work environment or the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. Solutions that can help employees stay at work safely and productively are a win for everyone.

Cognition is the act of knowing or thinking; it’s the ability to understand, remember, and use information. Cognition is what enables us to process input, make decisions and judgments, get organized, and plan for the short- and long-term future.

A wide variety of conditions can affect a person’s cognitive abilities, including chronic fatigue syndrome, autism, attention deficit disorder (ADD), sleep apnea, brain injury, stroke and, now, long COVID. Cognitive impairment manifests differently for everyone. People with conditions like these may at times have difficulty thinking or concentrating or feel slow, confused, dysregulated or forgetful.

Thinking differently

In the absence management and accommodations arena, we rarely dwell on an employee’s diagnosis — focusing instead on any limitations that affect their ability to do the job. Therefore, when it comes to cognitive impairments, employers should be primarily concerned with the aspects of a job that rely on cognition and if/how the employee’s limitations may affect performance.

Regrettably, accommodations for cognitive impairments lag far behind those for physical limitations. One reason for this is that most job descriptions and job demand analyses do not clearly outline cognitive requirements. We’re accustomed to postings that say qualified candidates must be able to lift 50 pounds or have the physical endurance to stand for two hours, but they don’t often include details on the job’s cognitive, emotional and psychological requirements. Another reason for the discrepancy is that cognitive limitations can be more difficult to quantify and assess.

Because there are few established standards for accommodating cognitive impairments at work, some creativity may be needed to successfully support employees with such limitations. However, at a time when organizations are struggling to find and keep enough people to meet operational demands, employers cannot afford to simply dismiss current and future employees with differing cognitive abilities.

Accommodations at work: two examples

Some employers are tapping into a notoriously underemployed segment of the population — people on the autism spectrum. Many with autism have trouble reading interpersonal cues and encountering new people or situations, so companies are adapting the interview process to alleviate barriers to employment. People on the spectrum may need some on-the-job accommodations that support their limitations, which can include executive functioning, stress management, socialization and sensitivity to sound and light. Employers report that the benefits of hiring people with autism for jobs suited to their strengths — including attention to detail, sustained focus and looking at problems differently than their neurotypical peers — far outweigh the costs. (For more, refer to this “60 Minutes” segment and the recommendations of the Job Accommodation Network (JAN) regarding employees with autism.)

Another burgeoning area of cognitive accommodations relates to the brain fog associated with long COVID (as described above). Because this is a new condition, there are no established standards for its accommodation. Based on other disorders that present with comparable cognitive limitations, JAN published these options that may bolster the performance of employees with COVID-related brain fog:

  • Providing a quiet workspace and/or allowing remote work.
  • Noise cancellation/white noise.
  • Uninterrupted work time.
  • Memory aids, such as flowcharts and check lists.
  • Apps for concentration, memory and organization.
  • Rest breaks.
  • Job restructuring to remove marginal functions, facilitating focus on essential job duties.

The far-reaching impact of long COVID isn’t expected to let up any time soon. Employers need effective standards and strategies for managing employees’ accommodations, return to work and more. To that end, the Disability Management Employer Coalition (DMEC) has established an interdisciplinary think tank focused on long COVID, with an eye toward developing best practices and resources for the employer community. Sedgwick is proudly sponsoring the think tank to support our industry in addressing these significant workforce challenges. DMEC is expected to release the group’s first report on long COVID in the weeks ahead, so please watch for that publication soon.

Could education be the key?

An area we hope to see further explored in the future — particularly for young adults entering the workforce — is the leveraging of individualized education programs (IEPs) in the workplace accommodations space.

Students with physical, intellectual and learning disabilities are customarily assessed through the school system and receive appropriate services and accommodations to support their educational engagement and progress. However, when students age out of the school system, their IEPs end, too.

IEP reports can shed a lot of light on the kinds of accommodations that can help those with limitations succeed in the workplace. If, for instance, learning specialists, school psychologists and other expert professionals determined that a teenager with some cognitive limitations needed untimed testing in high school, it’s likely they’ll also benefit from extra time to complete assignments or additional time management support when they enter the workforce a few years later. If an employee knows what kinds of accommodations contributed to their success in school as part of their IEP and then asks for similar accommodations at work, their employer will be well-served to seriously consider the request.

The education system has robust resources in place to accommodate children of differing cognitive abilities, but most of the information generated through the IEP process is lost once students graduate to the workplace. The employment sector can learn a great deal from the educational accommodations process, and we recommend more information-sharing to bridge the gap in the transition from student to employee.

Amid today’s stiff competition for talent and emphasis on workplace inclusion, it is imperative that employers make the effort to offer meaningful accommodations that enable individuals with cognitive, as well as physical, limitations to be valuable and contributing members of the workforce. Our team of experts at Sedgwick is at the ready to support the management of your organization’s accommodations program.

Work from home, vaccine and litigation trends in 2022

March 8, 2022

Share on LinkedIn Share on Facebook Share on X

By Adam Morell, JD, assistant vice president, product compliance

The crystal ball for the remainder of 2022 shows us that trends around work from home, vaccine mandates and litigation are sure to evolve. How can employers prepare?

Work from home: A game changer for employees with a disability

Before the pandemic, it was generally accepted for a court to defer to an employer on whether onsite presence was an essential function of the job. Therefore, they frequently didn’t have to grant remote work as an accommodation. However, after nearly two years of working remotely, questions will arise about why employees with a disability cannot continue to do so.

Moving forward, employers who want to decline requests from employees to work from home will need to individually assess each circumstance and pinpoint why remote work was not effective in the early stages of the pandemic. This could involve problems with technology, decreased productivity, lost sales, etc. Fortunately, as the cases of Frantti v. State of New York (2nd Cir. 2021) and Ryerson v. Jefferson County (11th Cir. 2021) illustrate, if you have a strong interactive dialogue with the employee and you determine that working from home isn’t reasonable, you will be in a much better position declining the request than if you didn’t do the individualized assessment.

Vaccine mandates: Keeping up with evolving regulations

With the shelving of the proposed Occupational Health and Safety Administration (OSHA) temporary standard, state and local vaccine mandates will likely continue to pop up as the OSHA rule makes its way through the courts. Currently, nearly two dozen states have some kind of vaccine or test requirement. On the other side of the coin, nearly a dozen states have adopted new laws intended to curtail workplace vaccine mandates. In fact, a couple of states, including Montana and Tennessee, have sought to ban such mandates entirely. Familiarizing yourself with evolving state and local regulations is essential.

At the employer level, many companies have implemented their own vaccine mandates. Equal Employment Opportunity (EEO) laws allow an employer to require all employees physically entering the workplace to be fully vaccinated against COVID-19, subject to the reasonable accommodation provisions of the Americans with Disabilities Act (ADA), Title VII, and other EEO considerations.

While several high-profile companies have issued strict vaccine mandates, the tight labor market may prevent some companies from doing the same. In fact, two of the country’s biggest manufacturers dropped their proposed vaccination requirements in December 2021 and another food and beverage company reversed course ­– informing employees that it would not require any vaccine or testing regimen.

Litigation: Expectations for 2022

In 2019, for the first time in the history of the ADA, disability charges were filed more frequently than any other type: race, color, religion, sex, national origin or age. In 2020, that trend continued, and the gap between disability charges and other charges widened. Aided by claims related to COVID-19, we anticipate that when litigation statistics for 2021 are announced, the trend will continue and the gap between disability and everything else will expand.

While it is still early in the year, we expect that working from home, discussions around vaccine mandates and increased disability-related litigation will be front and center for absence management professionals. We’ll continue to provide updates as trends evolve.

Blurring the lines between accommodations

April 30, 2021

Two people — one sitting in a wheelchair — are looking over some papers.
Share on LinkedIn Share on Facebook Share on X

As employers reimagine their return to work programs and strategies, they often wonder about the difference between traditional return to work programs and accommodations afforded under the Americans with Disabilities Act (ADA). At RIMS LIVE 2021, we answered common questions on the topic. Read on to learn more.

Definitions

What is an ADA accommodation?

Individuals who cannot perform a job due to an impairment are offered an accommodation that allows them to complete the essential functions of the job. Generally speaking, there are three types of accommodations:

  • An accommodation within the job
  • An accommodation with a leave of absence
  • An accommodation based on job reassignment

What is a traditional return to work program?

A traditional return to work program is a formal plan that helps employees return to work as soon as possible after an injury or illness. These programs typically focus on transitional, light or modified duty job assignments. The structure of transitional duty, for instance, can vary. One size does not fit all; rather, these options should be tailored to each organization. If successful, these programs can sometimes eliminate the need for an ADA accommodation.

Differences

What’s the difference between a traditional return to work program vs. an ADA accommodation?

An important distinguishing factor when it comes to return to work programs is that they are intended to serve as temporary solutions, designed to run for a for a specified time. An ADA accommodation on the other hand does not have a set end date and is often more individualized.

A common component of return to work programs relates to compensation. Most programs pay the injured employee at the same rate during this period as they were earning beforehand. This practice simplifies administration and can also contribute to employee morale and productivity. If at the end of the specified period, the employee is not able to return to work full time, the ADA will kick in. At that point, an individualized assessment is conducted and an interactive dialogue should be held between the employer and employee to determine next steps.

Benefits

What are the benefits of a traditional return to work program?

One of the most significant benefits of a return to work program is an increase in productivity. Return to work programs can also result in cost reductions, as an employer avoids onboarding or training costs that would otherwise be associated with hiring a new employee. These programs can also create higher levels of employee engagement, increase workplace morale and promote faster recovery. If the employee continues working, their workload doesn’t need to be shared, which would have been the case had the employee been on leave. As a result, this program has a positive impact on both the injured worker and their team.

study released by the Disability Management Employers Coalition (DMEC) in 2020 echoes these sentiments. The study found that 60% of employees say if they could access a robust return to work program, it would increase their likelihood of staying with their employer. Thus, the study reaffirmed that employees themselves recognize the benefits of return to work.

Trends

What have we recently learned about traditional return to work programs and accommodations?

While ADA accommodations and return to work programs are separate, they have converged noticeably in recent years. In 2019, for the first time in the ADA’s 30-year history, disability was alleged more often in Equal Employment Opportunity Commission (EEOC) charges than any other type of discrimination. From this, we can discern employees are becoming more aware of their rights under ADA. When employers have a consistent approach to the ADA and return to work policies, they can minimize this type of legal exposure.

Additionally, the COVID-19 pandemic put a spotlight on the importance of these programs and practices. According to the 2020 DMEC survey , 68% of respondents noted an increase in accommodation requests in 2020 versus 2019. Moreover, the number one request was remote work or work from home arrangements.

Before the COVID-19 pandemic, many employers claimed that letting people work from home would create an undue burden. However, the pandemic forced many employers to reevaluate this policy and many found success. As a result, it will be harder for employers to claim undue burden, logistical complications or the absence of collaboration. Attitudes have changed and it is not as easy to dismiss this type of accommodation request when made. Employers must look at requests for remote work accommodations more open-mindedly as this trend is expected to continue.

Success

What do organizations need to deploy a successful return to work program?

In order to succeed, a return to work program needs support from senior management. This traditionally isn’t challenging, as increasing productivity and decreasing costs are top business priorities. Return to work programs already align well with overarching goals. Once management buy-in is achieved, the program’s purpose and design can be communicated throughout the organization.

It is also helpful for employers to implement a single system of record that documents and time-stamps every single interaction with employees. This helps document programs, accommodations and the steps taken in the interactive process. Should a defensible case ever make its way to court, the documentation created within such a system makes it easier to prove that administrative processes and procedures were followed consistently and appropriately.

Here to help

As employers weigh the merits of their existing return-to-work and accommodation programs, they can be assured Sedgwick is here to help every step of the way. The employee is at the heart of everything we do, and there is value in taking a holistic approach when addressing workers’ compensation and workforce absence matters. We will continue to provide guidance to our clients as they work through industry challenges and look for ways to improve their claims management, productivity and employees’ experience. You can always reach out to us for further support or learn more at www.sedgwick.com.