SCOPE: ALL FACULTY AND STAFF
Issued: 4/1/00
Revised: 1/01/07
1. Return to Work Policy Statement:
It is the policy of 91ÖÆƬ³§ to provide a return to work program as the means to return employees to meaningful, productive employment following injury or illness.
The return to work program provides opportunities for any employee of 91ÖÆƬ³§ who sustains a compensable injury during the course and scope of employment, a disability as defined by the Americans with Disabilities Act, and/or a serious health condition as defined by the Family Medical Leave Act to return to work at full duty. If the employee is not physically capable of returning to full duty, the return to work program provides opportunities when available for the employee to perform a temporary assignment in which the employee's regular position is modified to accommodate the employee's physical capacities, or to perform an alternate duty position.
This return to work program shall not be construed as recognition by 91ÖÆƬ³§, its management, or its employees that any employee who participates in the program has a disability as defined by the Americans with Disabilities Act of 1990. If an employee sustains an injury or illness that results in a disability under the ADA, it is the employee's responsibility to inform his or her supervisor and 91ÖÆƬ³§'s Office of Human Resources and the Safety Officer when a disability under the ADA exists and that a reasonable accommodation is necessary to perform the essential functions of his or her job.
2. Return to Work Procedures:
Definitions: The following definitions apply to this procedure:
2.1 Serious Health Condition: An illness, injury, impairment, or physical or mental condition that involves:
2.2 FMLA Leave: Federal leave entitlement of up to 12 weeks of unpaid leave when an eligible employee is unable to work because of a serious health condition. The absence from work must be a period of incapacity of more than three consecutive calendar days. The leave is normally continuous, but may be taken intermittently or on a reduced leave schedule.
- inpatient care in a hospital, hospice, or residential medical care facility, including any period of incapacity; or
- continuing treatment by a health care provider, including a period of incapacity.
2.3 Lost Time: Time spent away from work at the direction of the treating doctor as a result of compensable injury sustained in the course and scope of employment. The term does not include time worked in a temporary assignment.
2.4 Full Duty: Performance of all duties and tasks of the position for which the employee is employed. Full duty entails performing all essential and non-essential functions of the employee's regular job.
2.5 Temporary Assignment: Performance of a temporary job assignment that is intended to return an injured employee to work at less than his or her full duties when a compensable injury or serious medical condition prevents the employee from working full duty. Two types of temporary assignments are modified duty and alternate duty.
2.6 Modified Duty: Performance of all of the essential functions, but only a portion of the non-essential functions and tasks of the regular job duties for which the employee is employed. Modified duty allows the employee to return to current employment in his or her regular job, and perform those duties and tasks that are within the capabilities of the employee, given the restrictions to duty imposed by the treating physician. Modified duty is a temporary arrangement until the injured employee can resume full duty. If the employee is a qualified individual with a disability as defined under the Americans with Disabilities Act, then modified duty may become a permanent arrangement as a reasonable accommodation, if the accommodation does not create an undue hardship on 91ÖÆƬ³§.
2.7 Alternate Duty: Performance of the essential functions of a job or position other than the position for which the employee is employed. Alternate duty allows the employee to temporarily perform other duties and tasks that are within the restrictions to duty imposed by the treating doctor. Such alternate duty may be physically located in the same facility or in some other facility. Alternate duty is a temporary arrangement until the injured employee can resume full activities of his/her regular job. If the employee is a qualified individual with a disability as defined under the American with Disabilities Act, then alternate duty may become a permanent arrangement as a reasonable accommodation, if the accommodation does not create an undue hardship on 91ÖÆƬ³§.
3. Prohibited Actions: This return to work policy and procedure shall not be applied to any situation or circumstance in a manner that discriminates on the basis of race, color, sex, sexual orientation, gender identity and expression, national origin, religion, or disability.
It is a violation of the return to work policy, procedures and state or federal law for any employee, supervisor or manager of 91ÖÆƬ³§ to:
3.1 Discharge or in any other manner discriminate against an employee of 91ÖÆƬ³§ because the employee:
3.1.1 Files a workers' compensation claim in good faith;3.2 Discharge or in any other manner discriminate against an employee of 91ÖÆƬ³§ because the employee:
3.1.2 hires a lawyer to represent the employee in a workers' compensation claim;
3.1.3 institutes or causes to be instituted in good faith a proceeding under the Texas Workers' Compensation Act; or
3.1.4 testifies in or is about to testify in a proceeding under the Texas Workers' Compensation Act.
3.2.1 Opposes any practice made unlawful by the FMLA or ADA; or3.3 Interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided by the Family Medical Leave Act (FMLA);
3.2.2 has filed any charge, or has instituted or caused to be instituted any proceeding under or related to the FMLA;
3.2.3 has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under the FMLA; or
3.2.4 has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under the FMLA.
3.4 Discriminate on the basis of disability against an employee of 91ÖÆƬ³§ who is a qualified individual with a disability under the Americans with Disabilities Act (ADA) in regard to:
3.4.1 Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists;3.5 Limit, segregate, or classify a job applicant or employee in a way that adversely affects his or her employment opportunities or status on the basis of disability.
3.4.2 Leaves of absence, sick leave, or any other leave;
3.4.3 Upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring;
3.4.4 Rates of pay or any other form of compensation, changes in compensation, and fringe benefits available;
3.4.5 Selection and financial support for training; or
3.4.6 Social and recreational activities.
3.6 Require a medical examination of an employee who is disabled as defined under the ADA unless the medical examination is job related and consistent with business necessity.
3.7 Make inquiries as to whether an employee is an individual with a disability or as to the nature or severity of such disability.
4. Position Descriptions of All Positions: All supervisors and managers are responsible for identifying, documenting and maintaining the essential and non-essential functions in a position description for all positions for which they are responsible. The physical requirements of the positions should be included in all position descriptions as either an essential or non-essential functions. All position descriptions shall be reviewed at least annually, and must be submitted for approval to the human resources manager.
5. Designated Return to Work Coordinator: A return to work coordinator has been appointed in the Human Resources office. The return to work coordinator shall be responsible for coordinating all activities associated with the return to work program, unless specific duties are otherwise assigned to another person or position.
6. Employee Participation in Return to Work Program: In order for an employee of 91ÖÆƬ³§ to be eligible to participate in this return to work program, the employee must have:
6.1 sustained a compensable injury as defined in the Texas Workers' Compensation Act that results in lost time away from work;
6.2 a serious health condition as defined by the Family and Medical Leave Act; and/or
6.3 a disability as defined by the Americans with Disabilities Act.
An employee who meets the above criteria shall be encouraged to participate in the program; however, participation by the employee in the program is voluntary and the employee cannot be forced to participate.
7. Notification of Injury or Illness: An employee who sustains an injury or illness off the job is expected to notify his/or her supervisor, or a person in a management position, that an injury or serious health condition exists. Such notification should occur at the earliest possible time after occurrence of injury or knowledge that a serious health condition exists. Such notification should ideally occur within 24 hours of the injury or when the serious health condition first manifests itself.
An employee who sustains an injury or illness on the job is expected to notify his/or supervisor and Human Resources, that an injury or serious health condition exists. Such notification should occur at the earliest possible time after occurrence of injury or knowledge that a serious health condition exists. Such notification should ideally occur within 24 hours of the injury or when the serious health condition first manifests itself. In order to receive workers' compensation benefits, an employee must give notice of an injury within 30 days.
8. Authorization for Leave and Lost Time: An employee who must miss work due to a compensable injury and/or a serious health condition must be certified or authorized by a health care provider to be off work. It is the employee's responsibility to obtain such certification from the health care provider and to return the certification to his/her supervisor in a timely manner. If an employee is disabled as defined under the ADA, the request must be job-related, consistent with business necessity and cannot inquire as to the nature or severity of the injury.
In general, the treating health care provider's certification should be provided by the employee to the supervisor according to the following timelines:
8.1 When the employee knows in advance that FML is necessary, the certification form should be provided to the supervisor a minimum of three work days prior to the time when leave will commence.
8.2 When the employee cannot know in advance that leave is necessary, the certification form should be provided to the supervisor within a maximum of three calendar days after initial visit to the health care provider.
The employee's supervisor shall provide a copy of the employee's position description to employee to take to the health care provider to assist the health care provider in determining whether the employee can perform the essential functions of the job.
9. Substitution of Paid Leave for Unpaid Leave: If an employee is injured off the job, the current General Appropriations Act requires the employee's accrued annual leave and accrued sick leave must be utilized before unpaid leave is taken. If a compensable work-related injury or illness is involved, the employee is not required to use all accrued annual or sick leave. The employee may elect to use, but may not be required to use, accrued sick leave before receiving workers' compensation temporary income benefits. However, if the employee elects to use sick leave, all accrued sick leave must be exhausted before the employee is entitled to workers' compensation temporary income benefits.
10. Periodic Status Reports: If an employee is certified by a health care provider to be off work, the employee is required to submit periodic status reports to his/her supervisor to report the employee's status and intention to return to work. Such status reports are required at the time of each scheduled visit with the treating health care provider and are due immediately following the visit. The status report should be provided to the supervisor within 24 hours of the scheduled visit, or if a weekend or holiday is involved, before close of business on the next scheduled workday.
If an employee has returned to work in a temporary assignment, and follow-up health care provider appointments are necessary, the employee shall schedule the appointments to minimize time away from the job. Time away from work for these health care provider appointments shall be counted against FMLA leave, if designated by the employer.
11. Communications with the Employee: At the time of first communication with the employee, the return to work coordinator shall provide information to the employee that contains the following, as appropriate:
11.1 91ÖÆƬ³§'s return to work policy and procedures and appropriate forms.
11.2 If job-related injury or occupational disease occurs:
11.2.1 Notification that the State of Texas provides workers' compensation benefits to employees who sustain compensable job-related injuries and/or occupational diseases;11.3 For FMLA leave:
11.2.2 How medical expenses and income payments are made;
11.2.3 How employee health benefits are continued;
11.2.4 The name, location and telephone number of the local Texas Department of Insurance (TDI) Workers’ Compensation Division field office and the name of the TWCC ombudsman at that office. The notice should state that the employee has a right to information and assistance from the TDI ombudsman with his/her claim; and
11.2.5 The rights available to the employee under the Texas Workers' Compensation Act.
11.3.1 Information regarding the employee's FMLA leave entitlement;
11.3.2 How employee health benefits are continued; and
11.3.3 Required certifications from the health care provider.
12. Communications with the Texas Department of Insurance (TDI) Workers’ Compensation Division: The claims coordinator is responsible for timely submission to the TDI Workers’ Compensation Division, all required reports and other important documents in 91ÖÆƬ³§'s possession regarding a workers' compensation claim, including the "Certification of Physician or Practitioner" form and "Return to Work Status" form. Timely submission of reports and forms is necessary in order to promptly initiate workers' compensation benefits, or cease payment of benefits when the employee returns to work. All reports and forms shall be submitted in a timely manner in accordance with the requirements of the Texas Workers' Compensation Act.
13. Temporary Assignment Positions: In cases involving on-the-job injuries, if an employee is certified by the health care provider to return to work, but in less than full duty, 91ÖÆƬ³§ may provide a temporary assignment position to the employee. Directors and managers are responsible for identifying temporary assignment positions to facilitate a return to work based on the business necessity of filling the employee position, the employee's entitlement to FMLA leave, the availability of temporary assignments, and other appropriate factors. These temporary assignments shall be coordinated with the Safety Officer and/or Human Resource Director. The maximum length of time that a temporary assignment may last must be based on relevant factors including the business necessity of the employee's original position being filled. Temporary assignment positions shall be identified, assigned and managed on a case-by-case basis based upon the business necessity of 91ÖÆƬ³§. The temporary assignment position shall be documented in a "bonafide offer of employment" letter to the employee.
14. Bonafide Offer of Employment: The bonafide offer of employment letter shall include the following information:
14.1 The type of position offered and the specific duties;
14.2 A statement that 91ÖÆƬ³§ is aware of and will abide by any physical limitations under which the treating doctor has authorized the employee to return to work;
14.3 The maximum physical requirements of the job;
14.4 The wage rate of the job;
14.5 The location of the temporary assignment;
14.6 The consequences of not accepting a temporary assignment, in terms of duration and amount of temporary income benefits payable under the Texas Workers' Compensation Act, and if the leave has not been designated by 91ÖÆƬ³§ as FMLA leave, the appropriate administrative penalties/disciplinary measures by 91ÖÆƬ³§ as specified in the human resources procedures.
14.7 The person to contact if the employee has questions regarding the temporary assignment, job modifications, or questions regarding the FMLA or ADA.
The employee may accept or reject this bonafide offer of employment. The employee should be informed that rejection to the bonafide offer of employment may result in workers' compensation temporary income benefits (if applicable) being stopped by the TDI Workers' Compensation Division as the state's insurance carrier. If the employee accepts the bonafide offer of employment, then the employee shall perform the duties of the temporary assignment position for the term of the assignment or until the employee is able to return to full duty, whichever is sooner. If the employee rejects the bonafide offer of employment, then the employee remains off work until the end of the FMLA leave entitlement period or until the employee is certified by the health care provider to return to full duty.
If the employee is unable to return to full duty by the end of the temporary assignment period and/or by the end of the employee's FMLA leave entitlement period, then the employee's continued employment with 91ÖÆƬ³§ shall be considered based upon the business necessity of having the employee's position filled and whether any reasonable accommodation is required under the ADA.
Risk Management for Texas State Agencies, Volume III, Section One