The Role of the Labor Relations Professional in Addressing the Issues of the Ill or Injured Worker By Elaine Rowan

Transcription

1 The Role of the Labor Relations Professional in Addressing the Issues of the Ill or Injured Worker By Elaine Rowan With the current trend of budget reductions, most employers are expected to do more with less. Restructuring or reducing the workforce has created personal and professional insecurities and in turn, has increased the level of stress factors for the worker. Each worker brings his own personal risk factors to the workplace age, gender, lifestyles and physiological makeup. Highly-stressed workers are more prone to job related injuries. Absenteeism due to injury, both work related and non-work related, creates a significant economic impact to the organization. The following questions are very common in today s workplace:: How can the manager cope with the absent worker, especially for long or intermittent absences? What rights or entitlements does the injured worker have? What issues need to be considered when returning the injured worker to the work force? Who should management talk with to address these types of issues? In the public sector, the Labor Relations professional plays an integral role in assisting management with day-to-day advice on employee/management workplace issues. The intent of this paper is to highlight three areas, referred to as Management Concerns in which the Labor Relations professional can provide technical support and expertise to management in resolving ill or injured worker s return-to-work issues. Management Concern Number One: A worker twisted his knee when unloading a truck. He must go to therapy twice a week during work hours. It s just a Worker s Comp thing--right? Interpreting the language of medical leave laws and what they require Many laws exist to protect the ill or injured worker. The Worker s Compensation Act, Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) provide the injured Page 1 of 7

2 or ill worker with certain rights. However, each law serves different purposes and provides different benefits, and these benefits are often concurrent. Worker s Compensation may entitle a worker to payment of medical expenses for his or her onthe-job injury and additional payments for time away from work associated with the injury. The FMLA entitles a worker to be absent from work because of an injury and able to receive group medical coverage for the worker s non-industrial injury; medical care for the worker s dependents; and the right to be restored to the same or equivalent position. The ADA may entitle the worker to a reasonable accommodation to enable the worker to return to his or her original position, or reassignment to a vacant position, and bans discrimination based on the disability. In California, additional protections exist. California disability leave laws, such as the California Family Rights Act (CFRA) and Fair Employment and Housing Act (FEHA) are intended to protect injured workers from discipline or discharge because of to absenteeism. To meet this goal, California laws offer greater protections to workers than federal laws. Many employers and workers are not aware that, in many respects, California laws provide greater rights and protections than federal statutes. Employers face different legal requirements under state and federal law regarding the ill and injured workers. An employer who incorrectly categorizes employees can be subject to potential liability. The Labor Relations professional can assist management in determining which state and federal laws are applicable to the injured worker to eliminate grievances and potential discrimination charges. Following is a summary table of state and federal laws concerning ill or injured workers: Page 2 of 7

3 Americans with Disabilities Act (ADA) Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA) Fair Employment and Housing Act (FEHA) California Labor Code 233 Worker s Compensation STATE AND FEDERAL LAWS CONCERNING ILL AND INJURED WORKERS Provisions and Protections Protects the civil rights of permanently disabled employees. Requires employers to provide reasonable accommodation to enable disabled employees to perform their jobs Requires that employers allow workers with serious health conditions, family illness, or a new baby to be off work (unpaid) up to 12 weeks, without losing their jobs or their health care benefits State program that provides civil rights protections similar to ADA; provides for a pregnancy disability leave of up to 4 months Allows for the use of no less than 6 months accrual of leave in any calendar year to attend to the illness of a parent, spouse, child or domestic partner Mandatory provision of medical care, temporary disability, permanent disability and vocational rehabilitation benefits to employees injured on the job prohibits discrimination Applicability Jurisdiction Allowance of Time Off Employers with 15 Federal: Not applicable or more Department of employees; all Labor/Equal Opportunity employees or job Commission applicants, including on-call and contract employees Employers with 50 or more employees; or who do business in California. All full and part time city and county employees, regardless of size. May not include on-call or contract workers* Employers with 5 or more employees; Federal: Department of Labor State: Department of Fair Employment and Housing State: Department of Fair Housing and Employment 12 work weeks or 60 work days in of unpaid a 12 month period. Part time or alternate work hours are calculated proportionately. Minimum duration for CFRA is two weeks (*To qualify, workers must have 12 months of service with the employer and have worked 1,250 hours within the 12 month period before the leave date begins) 4 months of unpaid leave for inability to work due to pregnancy disability All employers Not applicable 1/2 of worker s annual paid time off leave can be used All employees including on-call and contractors An employer with 1 worker is an eligible employer State: Division of Workers Compensation/Department of Industrial Relations No maximum or minimum Page 3 of 7

4 Management Concern Number Two: A worker showed me some language in the contract that says I have to give him full medical benefits even though he s on unpaid leave status for a Worker s Comp injury. Why? A worker came in with a note from his son s pediatrician stating the worker needs to be off for 4 more days to care for his son who has stomach flu. This is the third time in 4 months. Do I have to accept this? Formulating workplace policies and contract language that are effective Developing formal goals and objectives to address worker absenteeism due to injury and illness is important. Policies and contract language should be specific in affirming management s commitment to the return-to-work issue. Both should contain clearly defined processes, procedures and reasonable expectations of injured workers. While management normally initiates policy, union and worker involvement are critical in the development and implementation of return-to-work programs. Consultation with the Labor Relations professional is essential in the objective review of the policy and contract language to achieve applicability and consistency in the workplace. Workplace policy and contract language have similar components: each should complement the other. Both are divided into 3 subsections: a. Workplace philosophy, vision, mission, and values These must be consistent with the culture of the workplace. They should articulate a statement of the worker s value to the workplace. b. Objectives Objectives describe the intent of the program. They should be stated in unambiguous terms that are easy to understand at all levels and easy to measure. b. Operational procedures and implementation Operational procedures provide a step-by-step process to orderly implementation of the program. Procedures should address the following Page 4 of 7

5 policy issues: eligibility, identification, coordination, resources, incentives/disincentives, transitions and dispute resolution. Both procedures and contract language should communicate to the worker and the employer what the policy does and does not allow. In the return to work policy, the procedure should define what is a disability? It should describe the disability process, identify worker rights, roles and responsibilities of management and workers, and emphasize the importance of compliance. Some agencies have return-to-work coordinators to assist workers and management in this process. The Labor Relations professional has the expertise to assist in development and implementation of policies in addressing ill or injured workers. The policies should address: The assessment of issues for a safe and healthy work environment; The reduction or elimination of the incidence of work injuries or illness; The provision of safe and productive modified employment for the ill or injured worker; The review of practices for return-to-work programs that will accommodate ill and injured workers; The monitoring of current practices to assure that they meet the required state and federal mandates for the ill or injured worker. Management Concern Number Three: A worker came in with a note that he can t sit for more than 50 minutes. His position requires him to do data input. I can t accommodate him. A worker goes home sick with stress when I give her an extra assignment. What do I do? Educating the Workforce Organizations should take proactive steps to train management and workers. Management cannot protect workers or organizations unless they understand what the law allows and prohibits. Labor Relations professionals are responsible for assimilating the complex set of laws and staying current with Page 5 of 7

6 changes in the laws so they can interpret them for management. The Labor Relations professional should distill the laws into answer friendly format that can be used for training. Unless the manager is well trained, his or her ignorance can have a negative impact on the organization. Workers often view their managers as experts and a misunderstanding on the part of the manager can lead to miscommunication to the worker often resulting in a formal grievance or charge of discrimination. For example, a worker who erroneously believes that his rights under ADA are being violated can disrupt the entire workplace before the matter is resolved. Education for management and workers is a continuous process. Medical leave laws have terminology that is vague and subject to varied interpretation. Court cases stemming from interpretation of medical leave laws are plentiful. Most workplace issues regarding medical leaves are multifaceted: one size (or remedy) does not fit all. The Labor Relations professional can provide guidance to the manager in clarifying complex issues. Clear, concise communication can assure workers that they are receiving fair, appropriate, and legal treatment. The Labor Relations professional, working closely with unions in joint labormanagement committees, can also bring about a win-win situation involving an ill or injured worker. Summary Employee absenteeism due to medical leaves and return-to-work issues can be managed through the guidance of the Labor Relations professional. One should understand: the employer s obligations under medical leave laws; the importance of explaining policies and procedures that exist along with labor agreement contract language; and of providing continuous education for management and workers. All of this must be woven together in the administration of an effective program. The Labor Relations professional is the thread that makes the connections and ties all of the elements together. It is unrealistic to think that all medical leave absenteeism issues will be resolved by management and the Labor Relations professional. Many complex medical absenteeism issues, especially in larger organizations, may require a higher level of attention from the legal counseling Page 6 of 7

7 division. However, management, in partnership with the Labor Relations professional, can become a proactive team in developing a successful approach to address the worker s needs for medical leaves and to resolve return-to-work issues. Submitted by: Elaine Rowan Management Analyst Santa Clara County Labor Relations Office 70 W. Hedding St., 8 th Floor San Jose, CA / October 2003 Page 7 of 7