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Workers comp claims challenged by federal disability laws

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ANAHEIM, Calif. — Employment laws that govern disabilities in the workplace can also apply to workers compensation claims, sometimes adding more complexity to an already-challenging situation, according to experts.

Workers comp payers and employers should understand the nuances of federal laws such as the Americans with Disabilities Act, and its amendments act, along with the Family and Medical Leave Act, to better protect them from compliance fines, penalties and lawsuits, panelists told attendees on Tuesday at the Disability Management Employer Coalition’s annual conference in Anaheim, California. This is a growing concern as legal intersections become more entangled and employers grapple with accommodating workers, they said.

“We need to understand from the employee’s perspective how they are being served,” said Adrienne Paler, Sacramento-based director of total health & productivity management, disability and absence management for Sutter Health hospital network. “What starts to happen is something that should be simple becomes very complex.”

Bryon Bass, Albuquerque, New Mexico-based senior vice president of the disability and absence practice & compliance for Sedgwick Claims Management Services Inc., said much of the problem is the “siloed organization” of companies that keep workers comp and disability issues separate — with comp landing in the finance department and everything else falling in the human resources and benefits departments.

“Break down your siloes and collaborate (because) that’s where you’re seeing your problems,” he said. “There are opportunities to break down those barriers. There are inconsistent approaches on the workers compensation side and the disability side (and) we need to challenge the status quo.”

Jeff Nowak, Chicago-based co-chair of the labor and employment practice group for Franczek Radelet P.C., urged attendees to engage in the interactive process with injured or disabled workers to better understand what accommodations are needed in bringing an employee back to work.

He spoke of a common six-step process: recognize there is a request; gather information to understand the job description and the essential functions of the position along with obtaining necessary medical information; explore accommodation options and ask the employee about accommodations, validate the worker’s input and offer options; choosing the accommodation; implement the accommodation; and lastly, monitor the worker to ensure accommodation was effective and continues to be effective.

The steps are simple, yet misunderstood and all too often ignored, Mr. Nowak added. “That’s where I make my money: keep failing on the interactive process.”

“(The) interactive process can prevent lawsuits,” he said.  “I have seen first-hand where an employer engages in a robust interactive process. Showing that you engaged in that dialogue goes a long way in warding off the (U.S. Equal Employment Opportunity Commission) and lawsuits.”

And yet, changing regulations can create more roadblocks and confusion, warned Ms. Paler.

“Part of our challenge is staying current with regulations and what is required,” she said, offering this best practice as a way to avoid the pitfalls: “(Understand that) at the heart of this is helping the individual recovering from the life event or injury they are experiencing.”