(A) It is the policy of the city, when possible, to modify work assignments for a limited period to assist employees who are temporarily restricted from performing their regularly assigned duties due to an on-the-job injury. Note: This policy should not be construed as recognition that an employee has a disability as defined by the ADA of 1990 and its amendments.
(B) This policy applies to all city employees.
(C) For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
EMPLOYMENT-RELATED INJURY. An injury or occupational disease which arises from the course and scope of employment and is a compensable injury or illness as defined under the State Workers’ Compensation Act.
EVALUATING PHYSICIAN. In this policy, a doctor of medicine, osteopathic medicine, optometry, dentistry, podiatry or chiropractic who is licensed and authorized to practice within the scope of his or her license within the commonwealth as defined in the State Workers’ Compensation Act.
RETURN-TO-WORK (RTW) (MODIFIED-DUTY) POSITION. A temporary position to which an employee is assigned when he or she is unable to return to his or her regular position following an on-the-job injury or illness. The RTW POSITION temporarily addresses the restrictions placed on an individual by an evaluating physician.
(D) It is the responsibility of the employer to inform the evaluating physician and the claims adjuster of the employer’s RTW Program; to adhere to the assigned restrictions/limitations for the specified period of time; to maintain a positive attitude toward working within physical restrictions/limitations; and to continue to seek and follow appropriate medical care throughout the recovery period.
(E) It is the responsibility of the employer to review and evaluate work alternatives for a temporary specified period of time as established by the evaluating physician; to evaluate the job description and modify requirements within the position to accommodate the employee to the assigned restrictions; to monitor the injured employee to ensure work performed is within the assigned restrictions; and to continue to review and adjust job assignments as the medical condition improves and restrictions change until the final goal of either release to full duty or maximum medical improvement (MMI) is achieved.
(F) It is the responsibility of the evaluating physician to assign specific temporary restrictions for a specified period of time; to review and adjust assigned restrictions at each evaluation; and to maintain beneficial and appropriate medical care and treatment with the goal of moving the injured worker to full duty release or MMI.
(G) It is the responsibility of the claims adjuster to obtain specific temporary restrictions/limitations for a specified period of time from the evaluating physician after each evaluation; to communicate verbal and written restrictions to the designated employer contact; and to work effectively with the injured employee, employer and physician to reach the goal of returning employee to gainful employment.
(H) To be eligible for participation in the RTW program, an employee must have a written statement from the designated treating physician stating that he or she is:
(1) Temporarily unable to perform his or her essential duties following an employment-related injury or illness; and
(2) Capable of carrying out work of a lighter or modified nature from his or her regular duties and he or she is expected to return to his or her regular duties within 90 calendar days.
(I) Once notified of an on-the-job injury or illness and the injury has been reported to the employer’s workers’ compensation carrier, the employer will inform the employee in writing of the RTW program.
(J) The employee must be seen and evaluated by a physician to determine if the employee is able to return to work and if so, with or without restrictions.
(K) Prior to the evaluation or as soon thereafter, the employer must inform the evaluating physician of the RTW program and provide them with a copy of the employee’s regular job description that identifies the essential job functions and its requirements.
(L) When the employee can return to work with restrictions, the employee’s evaluating physician must complete a report indicating the specific restrictions and the duration of those restrictions. Clarification regarding temporary restrictions may be requested of the evaluating physician.
(M) Taking into consideration the information provided by the evaluating physician, the Mayor, with assistance from the City Attorney, will determine if a temporary modified-duty assignment can be offered. There may be instances in which the city will not be able to offer a modified-duty assignment.
(N) If the employee’s regular department is unable to meet the employee’s need for the modified-duty position, the employee’s department is responsible for payment of the employee’s salary and benefits while performing a modified-duty position in a different department which has been able to meet the employee’s need for modified duty.
(O) Income benefits otherwise payable to the employee by the workers’ compensation carrier for temporary total disability (TTD) during the period the employee has returned to a modified-duty position will be offset by an amount equal to the employee’s gross income minus applicable taxes paid by the employer to the employee during the period of work in the modified-duty position.
(P) The employer should use one of the two following compensation arrangements.
(1) There will be no adjustment in the employee’s normal compensation. The salary and benefits of the employee will remain the responsibility of the original employing department, including during any period of temporary placement external to the department.
(2) In most cases, there will not be an adjustment in the compensation of the employee that is placed in a modified-duty position. However, the employee placed in a modified-duty position will be paid a salary that is equivalent to the salary of other employees holding the same position. If that salary is less than his or her normal salary, then he or she will be paid at least what the maximum weekly benefit would be for his or her regular salary as defined by the State Workers’ Compensation Act.
(Q) (1) Once the employee has been approved to participate in the RTW program, the Mayor must provide a return-to-work letter.
(2) This letter will include:
(a) The position offered;
(b) The location and duties of the position offered;
(c) The wages and schedule of the position offered;
(d) The duration of the temporary work assignment;
(e) A statement that the employer is knowledgeable about and will abide by the limitations under which the treating physician has authorized the return to work; and
(f) A statement acknowledging that the employee will or will not accept the modified duty and this must be returned to the employer.
(R) An employee may choose to accept or refuse the return-to-work offer. Rejection of the job could result in suspension of income benefits under workers’ compensation insurance. Any acknowledgment received by the employer that the employee has refused the return-to-work offer will be sent by the employer to the claims adjuster.
(S) Employees do not waive any rights to workers’ compensation benefits by participating in the RTW program. Employees participating in the RTW program will continue to be covered by the Workers’ Compensation Act for reasonable and necessary medical expenses and disability benefits related to the injury or illness.
(T) The maximum length of a return-to-work with modified-duty offer will be 90 calendar days. The duration of approved time will be based upon the information provided by the employee’s evaluating treating physician.
(U) An employee who is unable to return to his or her regularly assigned duties at the end of the modified duty assignment and who remains with temporary restrictions which will prevent them from returning to his or her preinjury position will begin to receive TTD benefits through the workers’ compensation program. If the restrictions are permanent and will not allow the employee to return to his or her preinjury position, then the employee may be eligible to request a leave of absence pursuant to the employer policies or an accommodation pursuant to the ADA policy addressed within § 36.022. However, the employer can terminate the employee if leave of absence is considered an undue hardship on the employer and no other ADA accommodation can be made based on the employee’s restrictions.
(V) Employees may be required to attend an independent medical exam (IME) to either clarify the continued restrictions or find that they have reached MMI and permanent restrictions are assigned as determined by the evaluating physician.
(W) The department has the option to approve or deny the leave of absence request after considering the ADA. If leave without pay is denied and no accommodation can be made under the ADA, employment with the city will be terminated.