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Return to work programs

By Yosie Saint-Cyr, LL.B., Managing Editor at HRinfodesk.com---Canadian Payroll and Employment Law News, September 2007

Studies indicate that the probability of return to any form of employment decreases rapidly with the passage of time away from work. The economic and social impact of work-related illness and injury has been well documented. It is estimated that worker disabilities cost Canadian employers a total of between $10 to $20 billion dollars per year. In addition, absences due to disability or illness are among the most challenging human resource situations facing employers. There are also legal requirements in many jurisdictions for employers to facilitate safe and timely return to work. Additionally, human rights legislation prohibits discrimination in employment due to disability. Consequently, disability management experts indicate that a return to work program has been shown to greatly benefit the recovery of injured or ill personnel, and help employers help injured and ill workers stay at work or return to productive and safe employment as soon as physically possible.

Thus, it was reassuring to see in our latest HRinfodesk Poll, which asked readers if they had a return-to-work program in place, that 54% of respondents have implemented return-to-work programs that cover both work-related and non work-related disabilities. However, the percentage of employers who do not have any type of return-to-work program (21.5%) is still quite high.

This shows that employers are starting to take serious and proactive measures to provide modified or alternate work to injured or ill workers as part of a process of safely returning those workers to work and helping them to regain their earning capacity.

Below is a breakdown of the results of the poll and further information about why it is important to implement return-to-work programs. Additionally, there is information on an employer's legal obligation to have return-to-work programs and how to develop these programs, including links to free tools and resources.

Legal obligations

Any return-to-work program should be designed to meet the requirements of workers compensation and human rights legislation, as well as Supreme Court of Canada rulings.

Workers compensation legislation

Several provinces and territories in Canada under workers compensation legislation impose a legal obligation on certain or all employers to take all reasonable steps to return injured and ill employees to their pre-injury job as quickly as possible. For this obligation to apply, the illness and injury has to be work-related. Where the employee is unable to return to their pre-injury job, the goal will be to return them to alternative work that is consistent with their functional abilities. The provinces of Manitoba, New Brunswick, Newfoundland and Labrador, Ontario, Prince Edward Island, Nova Scotia and Quebec have this legal obligation for work-related illness and injuries. To know more about employers re-employment obligation in these jurisdictions, go to the Library section of HRinfodesk, click on the applicable jurisdiction, then on the heading Health and Safety, and then on the subheading Re-Employment Obligations.

In provinces and territories that have no obligation to re-employ (Alberta, British Columbia, Saskatchewan, Northwest Territories, Nunavut and the Yukon), a return-to-work program is highly recommended by the workers compensation board of that jurisdiction. A return-to-work program is a proactive way for employers to help injured workers stay at work or return to productive and safe employment as soon as physically possible.

Regardless, when employers establish a return-to-work program, they can improve their experience rating by helping injured workers return to work.

Generally, this involves some form of organized employee rehabilitation with a return to work plan. In cases where the employee can no longer return to his or her pre-injury job, the employer must return the employee to modified work by removing the elements that the employee can no longer perform, or by giving the employee another job with duties the employee can perform.

If a WCB finds that an employer has not complied with the obligation to re-employ under the Act, the employer will be subject to stiff administrative penalties and fines, usually in the amount not exceeding the amount of the worker's net average earnings for the year before the accident (depending on the jurisdiction).

Human rights legislation

Human rights legislation across Canada ensures that employees cannot be terminated or treated differently due to a disability (physical or mental, actual or perceived) without the employer first taking steps to accommodate that disability to the point of undue hardship, unless the nature and extent of the physical disability or mental disability reasonably precludes performance of a particular employment or activity. In addition, this duty to accommodate generally covers personal illness not related to the job. This protection ensures that an employer cannot terminate an employee simply because the employee is ill.

The duty to accommodate under human rights legislation implies that the employee has a right to return to work in his or her pre-disability job or a similar job if the employee can fulfill the essential duties of the job after accommodation. If the employee cannot fulfill the essential duties of the job, despite the employer's effort to accommodate short of undue hardship, there is no right to return to work. You either accommodate the employee to the point of undue hardship so he/she can return to work as soon as possible; or despite your best efforts to accommodate, if he/she cannot return to his/her job or an alternative job, you have to terminate with reasonable notice or pay in lieu of notice.

This duty applies to employers of all sizes and is not time limited.

Accommodation is any change or adaptation to the work, hours of work, work duties or workplace, and includes the provision of equipment or assistive devices.

Supreme Court of Canada rulings

The Supreme Court of Canada has stated that the term “handicap” should not be confined within a narrow definition (physical or mental anomaly that results in functional limitation) that leaves no room for flexibility. According to the Court “a handicap may be real or perceived, and a person may have no limitations in everyday activities other than those created by prejudice and stereotypes”. The Courts will have to consider an individual's medical condition and the circumstances by which a distinction is made. A “handicap” may exist even without evidence of physical limitations or other ailments. Examples of such handicaps are diabetes, eczema, or a deviation in the spinal column. What must be stressed is the effects of the distinction, exclusion or preference, rather than the precise cause or origin of the handicap.

Significantly, the Supreme Court has noted the need to adapt society so that its structures and attitudes include persons with disabilities. This requires a shift in our approach to the entire area, one that affirms the centrality of human dignity in achieving equality. This means, that employers and others who set standards must build conceptions of equality into the workplace. However, the courts have also recognized that the duty to accommodate is not open-ended. It may not be required if it can be shown that providing accommodation would cause “undue hardship” to the organization.

The employer must accommodate up to the point of “undue hardship”. While there is no single definition in law of this term, the various decisions on accommodation make it clear that this effort must be substantial. Recent cases have said that the employer’s must show that its attempts to accommodate were “serious”, “conscientious”, “genuine”, and demonstrated its “best efforts.” The Supreme Court of Canada has endorsed this threshold, stating that employers must establish that it is “impossible to accommodate individual employees …without imposing undue hardship.” Once the employee has established a prima facie case that she or he has a mental or physical disability that requires employment accommodation, the burden then shifts to the employer to prove that every reasonable effort was made to accommodate the employee’s disability.

Development and implementation of effective return-to-work programs

A return-to-work program should cover both work-related and non work-related disabilities and be part of a disability management program. The program should also commit the workplace to the reintegration of ill and injured workers.

A disability management program is a proactive approach to helping injured or ill employees return to safe and productive work activities as soon as medically possible with a primary focus of minimizing the impact of injuries or illnesses. It is a partnership involving employers, employees, healthcare providers, unions and employee representatives, and the workers compensation board of your jurisdiction (if dealing with a work-related injury).

According to Benefits Canada, there are a number of models for disability management in today's workplace. Four examples are:

  • The Traditional Model - a method whereby the care plan, authorized leave and return-to-work process is medically directed. The employer relies on the treating practitioners (primarily physicians) to substantiate the authenticity of the illness and help the employee return to work. This is the starting point for many insurers' disability management models.
     
  • The Job Matching Approach - a model which involves a fitness assessment of the injured/ill employee and a physical/psychological demands analysis of the employee's job to determine if there is a match or mismatch for a safe return to work.
     
  • A "Managed Care" Model - an approach in which the employee's diagnosis is referenced against standardized care plans, procedures and diagnostic testing guidelines to determine if treatment and the physician's suggested leave duration are appropriate. This model, like the first example, tends to be medically oriented.
     
  • A Direct Case Management Model - this employee-employer approach to dealing with the employee's reduced work capacity and the employer's business needs uses some of the elements of the first three models. However, it is the employee and employer who decide the terms of the medical absence and return-to-work plan.

Although each of these four models has been created in a response to different needs and drivers, they all have a valuable contribution to make towards disability management. The fact that most programs today use some elements of each model attests to this fact. Typically, the traditional model is the starting point for disability management programs and elements of the other models are added as required.

Based on experience, the best approach to disability management is one centered on the employee-employer. Effective programs maintain the employee/employer relationship, focus on the employee's capabilities versus disabilities, and are supported by a variety of technical specialists and case management approaches.

Operationally, disability management includes eight key elements:

  • management-labor commitment and supportive policies;
     
  • stakeholder education and involvement;
     
  • supportive benefit programs;
     
  • a coordinated approach to injury/illness management;
     
  • a communication strategy;
     
  • a graduated return-to-work program;
     
  • measurement of outcomes; and
     
  • disability prevention.

Key elements

A return-to-work program (within the disability management program) takes all injuries and illnesses into account; each case is considered independently and an appropriate return-to-work plan is established. Usually it provides short-term accommodation based on the employees abilities and limitations. Return-to-work plans have time frames and schedules that are transitional and reflective of the employee's needs and abilities.

A key element of the disability management program with a return-to-work plan is developing a written policy and procedures stating the organization's commitment, roles, responsibilities and expectations. Effective policy and procedures may require approval from all levels of the organization as well as unions and third party insurers. Policies should also cover such issues as: salary replacement, job accommodation, transitional employment, budgetary responsibility and vocational training when necessary.

Return-to-work programs must focus on the abilities of the worker. Any modified duties or tasks must be appropriate and meaningful and serve a rehabilitation role in helping the worker return to work. Develop a database of job options or tasks for return-to-work programs. Ensure these jobs/tasks have been evaluated for physical, cognitive and psychosocial/work organization demands.

Specifically, employers need to identify return-to-work options; the following are some points to consider:

  • Job duties assigned must be productive and meaningful.
     
  • The placement should be transitional and time limited, directed towards a full return to the pre-accident job whenever possible.
     
  • Completed task analysis should be used to identify suitable job modifications or accommodation options.
     
  • The placement should emphasize the employee's capabilities rather than his limitations.

When identifying return-to-work options the primary goal is to return the employee to his or her pre-disability position.

The following options are often considered when establishing individual return-to-work plans:

Gradual hours - The process of gradual reintegration to the workplace through a structured increase in hours of work to improve workday tolerance.

Assistive devices - Any materials, devices or equipment used to eliminate or reduce the restrictions and limitations caused by an injury or illness.

Job modification - Any change in the structure of duties that make up a job; may involve reorganization or elimination of tasks, physical changes to the work area and/or changes in the equipment used.

Transitional work program - A temporary accommodation to facilitate an injured or ill employee's safe transition to full employment hours and duties. The transitional work program may complement external treatment programs (physiotherapy, chiropractor) as appropriate.

A suitable return-to-work plan must be developed for, and with the cooperation of, the ill or injured worker. Workers are expected to participate fully in their rehabilitation programs and failure to do so may result in the suspension or reduction of loss of earnings benefits. Workers may be subject to disciplinary measures up to the point of termination if they do not participate fully in their rehabilitation programs. Therefore, once it has been determined that the return-to-work plan is appropriate, the ill or injured worker has a responsibility to carry out the plan. All parties of the return-to-work plan (employers, employees, healthcare provider, union and WCB, if applicable) must maintain open lines of communication.

Benefits of a disability management program

Workplaces that have successfully implemented disability management programs report significant reductions in both short-term and long-term disability claims.

A disability management program gives employers a way to manage workplace costs and improve employee benefits by creating a safer, more cooperative and productive workplace. These programs also enable employers to:

  • reduce employee turnover and lost time;
     
  • increase employee awareness of all costs (human and financial) of injuries and illnesses;
     
  • reduce accident and workers' compensation costs;
     
  • reduce hiring or training costs;
     
  • retain experienced employees;
     
  • improve employee relations and morale;
     
  • boost overall productivity and company image;
     
  • participate in the rehabilitation and return-to-work process; and
     
  • develop a return-to-work process that may be used for work-related and non-work-related injury or illness.

A disability management program helps employees to avoid long-term absence from the workplace, and allows them to:

  • maintain income;
     
  • retain productive employment and job security;
     
  • maintain self-esteem, family stability and social ties;
     
  • maintain job skills;
     
  • retain CPP benefits and employment insurance eligibility;
     
  • retain pension and benefit packages; and
     
  • resume “routine” life activities sooner, with less uncertainty about the future.

Summary

A wise first move in establishing a disability management process (program) is to implement it before you have to deal with lengthy absences or return-to-work situations.

The following tips in developing a return-to-work program are offered:

  • Ensure your employees know they are expected to participate and you will do everything possible to assist them in getting back to work.
     
  • Make the program flexible so it can accommodate a variety of different situations.
     
  • Ensure the program is available to employees who have work and non-work related injuries.
     
  • Create the forms and letters you would need and have them on file for when you need them (e.g., return-to-work plan, modified work offer/agreement, the physical demands of each job, functional abilities form, etc.) Update them as needed.

A return-to-work plan involves:

  • transitional duties or a gradual return-to-work progression
     
  • guided timelines established with a physician, taking the worker's capabilities and medical restrictions into account
     
  • an established start and end
     
  • a communication strategy and methods between all parties involved

Return-to-work tasks:

  • Are temporary
     
  • Are meaningful and productive
     
  • Are designed to help return an injured worker to regular full-time duties in a safe and productive manner
     
  • Allow the injured worker to return to the job site for partial days, gradually working up to full-time hours
     
  • Offer graduated hours of transitional or regular duties
     
  • Can combine offsite treatment with transitional or regular duties

Here are some policy considerations and elements of a return-to-work and modified work policy:

  • Consult with the Workers' Compensation Board of your province or territory; they may have some resources available and/or staff that can assist you in developing programs and policies
     
  • Ensure proper communication exist between the employer, the injured employee, the healthcare provider and the Union so that proper benefits are maintained and all parties are aware of the employee's recuperation and progress
     
  • Ensure the employer writes to the healthcare provider and sends the functional abilities form to be able to provide proper assistance and accommodation to the injured employee
     
  • Refer to legislative requirements of your province or territory

In the policy include:

  • Who is eligible for return-to-work and/or modified work programs
     
  • Select a workplace coordinator: who to contact to initiate the program
     
  • When the provisions of the policy go into effect; for example, on the advice of the healthcare provider, how many days after an injury does an employee have to return to work
     
  • Who has what responsibility under the program: the employer, injured employee, healthcare provider, supervisor, and the health and safety committee or representative
     
  • How and what steps are taken and which measures are involved in the program
     
  • Other timelines, such as length of any rehabilitation programs, how long the modified work may last, and transition periods from modified work to full work
     
  • Methods for implementing, monitoring, evaluating, and obtaining feedback on both the employee's progress and the efficacy of the program itself
     
  • Methods for communicating with the employee during the recuperation or illness period
     
  • The terms for any modified work, such as hours, wages, benefits, among other things
     
  • Definitions for modified work, light duties, temporary disability and so forth
     
  • A checklist, samples of an agreement for a modified work program, medical clearance (written request to obtain medical information), functional abilities form, modified work assignment, and a modified work assignment employee duty evaluation
     
  • Dispute resolution process
     
  • Program evaluation methods

Managing absences related to injury and illnesses

Managing absences related to injury and illness is an increasingly difficult task. The following are some guidelines to help you manage an employee's absence from work as well as his or her return to work. In this instance, we are discussing illnesses of more than three business days or a request for sick leave or extended sick leave.

  • If you doubt the legitimacy of an employee's absence from work due to illness, obtain medical documentation supporting it.
     
  • Ask employees to consent to the reasonable release and disclosure of medical information and documents by their doctor.
     
  • Do not be afraid to communicate your position to the employee. If the employee refuses consent or refuses to provide medical documentation to justify the illness, consider the employee to be on an unapproved leave of absence, to have abandoned his or her employment or to not be disabled, because you have no obligation to grant a medical leave of absence or accommodate an employee's illness or injury until the employee proves that he or she is ill or disabled. Take note that this comment has nothing to do with an employer's obligation to provide 10 days' emergency leave or any sick leave under employment standards legislation.
     
  • Make sure that the medical documentation provided by the doctor is detailed enough to confirm that the employee is indeed ill, unable to work at the moment but is capable of returning to work in the very near future and resume all or part of his or her duties. The doctor should give a specific time frame.
     
  • Make sure the doctor has made you aware of all of the employee's restrictions such as what workplace activities the employee can or cannot perform, as well as what steps to take to accommodate the employee. You are entitled to know the extent of an employee's ability to work and accommodations that are required before returning an employee to work to his or her position.
     
  • If the employee refuses to cooperate and provide you with the above information, consider not allowing the employee to return to work.

Resources and tools

Mental Health Works - Employers - How can I support an employee's return to work after disability leave for a mental health problem?

Review this resource guide and toolkit (PDF) for small business operators who require information and tools to help prevent, prepare for and deal with injuries, illnesses or disabilities. These resources were developed by Reaching E-Quality Employment Services. Although prepared for Manitoba small businesses, the information may apply to other jurisdictions with slight modifications.

Reasonable Accommodations: How-To Tips for Employers

The International Labour Organization (ILO) has approved its first code of practice on managing disability in the workplace. The purpose of the code is to provide practical guidance on the management of disability issues in the workplace, provide employees with equal opportunities, improve employment prospects for disabled employees, promote a safe, accessible and healthy workplace, ensure that employer costs associated with disability among employees are minimized including health care and insurance payments, and maximize the contributions which employees with disabilities can make to the organization. Not free but an inexpensive valuable guide to have: Code of practice for disability management: describing effective benchmarks for the creation of workplace-based disability management programs is downloadable for $15 at www.nidmar.ca/products/products_details.asp?id=2.

Creating healthy workplaces Source: Industrial Accident Prevention Association (IAPA)

Stress & The Workplace

CCOHS: Bringing Health to Work: Tools

Seven Principles for Successful Return to Work (in PDF)

Employers' Advisers: Sample Return to Work Approval Letter

Job analysis - a valuable tool in determining capacity to return to work for the cardiac patient

Human Rights and the Return to Work: The State of the Issue

WSIB Sample return to work plans (in PDF) www.wsib.on.ca/wsib/wsibsite.nsf/LookupFiles/DownloadableFileSampleRTWPlans/$File/SamplesRTWplans.pdf

Ontario Employer Adviser Return to Work Sample Program www.employeradviser.ca/pdf/rtw-sample_e.pdf

Newfoundland and Labrador Early and Safe Return-to-Work Plan – Completed Sample Form www.whscc.nf.ca/policy/upcoming_policies/rtw_forms/esrtw.pdf

Checklist for Case Managers and/or Supervisors www.wcb.mb.ca/download/employers_return_to_work/ChecklistforCMandSupervisors_225.pdf



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