A panel of safety leaders and employment law attorneys at the 2012 America’s Safest Companies (ASC) Conference in Chicago discussed strategies to manage employee injuries, including building relationships with occupational medical providers and obtaining a baseline assessment of employees’ fitness for duty.
Pete Gillespie, counsel with Fisher & Phillips LLP; Troy Allen, regional HSE manager at Jacobs; Jeff Romine, corporate safety director at Shaw Industries Inc.; and panel moderator Dan O’Brien, a partner at Fisher & Phillips, discussed the complexity of employee fitness for duty and managing injuries in a Sept. 11 ASC Conference session.
Allen stressed the importance of conducting a baseline functional assessment of an employee’s fitness for duty immediately after hiring. If, for example, an employee starts a job with only 60 percent range of motion in his shoulder and then injures his shoulder on the job, his employer may be responsible for bringing the shoulder back to 100 percent – which would be impossible since the employee had compromised range of motion in the first place.
With a functional assessment in hand, however, the employer only is responsible for bringing the employee back to his original baseline. As long as these assessments are given to all employees after a hiring offer has been made, and assuming the worker is not truly disabled or unable to perform the central functions of the job, it is not a discriminatory action.
“As long as it’s done uniformly, if it’s done post-offer and consistent with the business needs, EEOC won’t have a problem with that,” Gillespie said.
Building Relationships with Physicians
“He who controls primary care controls the cost of the claim,” O’Brien said. “Working with an occupational medical provider is absolutely essential to controlling workers’ compensation claims.”
Ideally, employers should build relationships with occupational physicians now, not just after an injury occurs. The doctor must understand the work your employees will perform and what is required of them physically. If physicians have this understanding, “they will typically work with you,” Romine explained.
But if an employee visits a family doctor instead of the occupational physician, the employer has lost control of care and the medical costs of that claim. Keep in mind that different jurisdictions will have different legal requirements for how much influence an employer may have in the employee’s choice of doctor.
In some jurisdictions, O’Brien explained, it’s not legal to tell employees they must see a certain doctor – but if you tell employees, “You should go see this doctor,” the majority of workers likely will follow your direction.
Encouraging a relationship between employees and occupational physicians can pay off not only for employers, but for workers and their health, too. Allen explained that having a local occupational medical provider visit the company periodically for preventative care (which some providers may offer free of charge), can provide employees who might not usually go to a doctor with necessary medical care. This builds relationships and trust.
“Those things add up,” Allen said. “So when you do have the injury, employees want to see [the occupational doctor] because they understand that relationship. That goes a long way.”
