Matheson Philosophy on Workplace Safety and Work Injury Evaluation

Q&A: Inconsistent Company Policies on RTW

When an employee is out (whether it is WC or Disability) is it OK to have an inconsistent policy on how they come back? For example:

- Some employees bring a note from their doctor, present it to medical at the plant, and they return to work.

- Some employees are sent to the “company doctor” who does a brief assessment and makes a determination based on the job analysis (this may or may not agree with the employee’s doctor).

- Some employees are sent to the “company doctor” and he orders an FCE (which may or may not agree with the employee’s doctor).

Our policy is that the company doctor, or FCE ordered from the company doctor, always trumps the employee's doctor.

Here is a real example: An employee is taken out of work by his/her personal doctor and that personal doctor later releases him/her to RTW without restrictions. The company doctor gives restrictions that the company says it cannot accommodate.  The employee wants his/her own personal FCE that will say he/she can do the job, but the company wants to have their FCE that is job specific. Right now, the company does not require all employees to go through an FCE to RTW. Is this discrimination? The employee's personal FCE will not be job specific, the company's FCE will be.

 

Thanks for the nice series of questions; you raise several important issues. Be sure to consult with an attorney before following these thoughts.

First, the company should have a consistent policy regarding return-to-work. The goal is to treat all employees openly and fairly.

In the circumstance you describe above, you may want to design a policy based on (1) time off the job, or (2) known severity of the injury.

Taking the time off policy for example, you may want to be specific to the extent that every individual off more than 90 days, for any reason, must visit the company physician. Armed with an Essential Function Job Analysis, the physician can apply his/her medical knowledge of the worker to the specific demands of the job. If the physician thinks there is cause to write a script for an FCE, then he/she should follow the procedures described in Paul James v Goodyear Tire and Rubber.

The second case is a little trickier. Again following Paul James, if the union, management, co-workers, or medical staff have knowledge of the fact that the worker was off due to a significant injury, the policy should direct the worker to an examination by a qualified medical person. “Qualified” means two things: (1) knowledge of the physical demands of the essential functions of the worker’s position; this comes from the Essential Function Job Analysis. And, (2) the medical personnel, whether inside or outside the company, are acting as an agent of the company if they have the power to make the return-to-work decision. This person must have knowledge of the ADAAA and MUST follow company policy on treatment of the worker. In other words, don’t let someone make a potentially costly adverse impact decision for the company unless he/she knows the rules!

As a side note: a family physician is not likely to have agency in the case described above. They cannot direct return-to-work if it conflicts with company policy.

Do you have any experience with inconsistent policies regarding RTW? Do you have any questions or comments about discriminating policies? Share them below!

Stay in touch with us on: