Disability, Leave and Health ManagementDisability, Leave and Health Management jackson lewis

Preventive Strategies and Positive Solutions for the Workplace ®

WORKALL WE DO IS

®

dDeveloping a comprehensive strategy for hiring and retaining indi-

viduals who can satisfy your legitimate performance expectations

has never been more challenging. Employees are older, increas-

ingly overweight and unhealthy, and seem to juggle more family

responsibilities than ever. An increasingly complex array of fed-

eral, state and local laws protect these workers and complicate

efforts to operate efficiently. The Family and Medical Leave Act

and the Americans with Disabilities Act are mere starting points.

HIPAA, GINA, ERISA, DOT, and OSHA can impose additional feder-

al compliance obligations. Add to this state workers’ compensa-

tion, disability, family and medical leave, pregnancy leave, “small

necessities” leaves, and medical privacy protections, and one

easily can understand why employers feel paralyzed by the law

when managing injured and ill workers.

Our Disability, Leave & Health Management Group helps cli-

ents take control of this business exposure. Leveraging years of

experience in ADA, FMLA, OSHA, substance abuse and HIPAA,

we enhance legal compliance and reduce business risk by: (1) de-

signing procedures for hiring employees with the highest proba-

bility of meeting business objectives; (2) developing policies and

processes to enforce legitimate performance, productivity and

attendance standards; and (3) crafting strategies for improving

health and productivity, ultimately reducing the number of disabil-

ity and leave management situations that must be addressed. At

all times, we remain keenly aware that absent employees mean

lost profits and business opportunities and employers need busi-

ness solutions more than legal memoranda.

agencies, and juries. This is particularly true when lawsuits are brought by sympathetic plaintiffs, such as injured or ill employees or those with caregiver responsibilities.

Telling a good story and effective performance manage-ment starts with drafting policies that clearly communicate performance standards and expectations for employees temporarily unable to meet those business requirements. It requires training managers, supervisors and employees to ensure company standards and expectations are met and employees are not “surprised” when held accountable for failing to satisfy those standards or meet company expec-tations. It relies on candid and firm written communica-tions providing notice of deficiencies and a reasonable op-portunity to improve performance. And, when necessary, it concludes with efforts to end employment relationships in an orderly manner, minimizing business distractions and employment litigation exposure.

We regularly assist employers in designing, coordinat-ing and integrating policies and benefits aimed at achieving these objectives and aligning them with a company’s atten-dance, productivity and performance standards.

Enhancing Employee Health, Attendance and Productivity

A growing number of employers are interested in imple-menting workplace “wellness” programs to improve em-ployee health and productivity and regain control over health and disability benefit costs. We help clients develop wellness programs – which typically include education, be-havior modification and incentive components – while en-suring compliance with the ADA, HIPAA and other federal and state laws.

We guide companies in developing substance abuse testing and treatment programs, fitness for duty and func-tional employment evaluations, and other workplace safety programs. Whether voluntarily administered or required by OSHA, DOT or other federal regulations, these programs prevent workplace injuries and proactively manage related business exposures. We also have the in-house behavioral science expertise to help clients achieve a “psychologically healthy workplace,” with an emphasis on reducing stress and maximizing the effectiveness of an emotionally and so-cially comfortable environment.

Our Goal: Helping Clients Achieve Their

Business Objectives

Improving Hiring Practices

To reduce workplace injuries and improve employee pro-ductivity, employers must better evaluate whether job ap-plicants can satisfy the physical and mental demands of positions. We help clients develop strategies for identifying, screening, and interviewing candidates, including the use of employment tests, functional employment evaluations, substance abuse testing, and physical and behavioral evalu-ations.

Proactively Managing Employee Attendance and Productivity

Employers are much more likely to avoid litigation and win cases when they can demonstrate – through policies and documentation – that they have complied with all le-gal obligations and treated employees fairly. We like to say employers must have “a good story to tell” – to employees, their legal representatives, federal and state administrative

Specific Disability, Leave and Health

Management Services

Disability Management

Unlike many other workplace laws, the ADA is a pur-posely vague law with few bright line rules. Determining an individual’s qualifications for employment requires an individualized assessment of a person’s physical or mental impairment, essential job functions, and potential reason-able accommodations that might overcome specific job-related limitations. This process is anything but intuitive and depends on employers communicating effectively with individuals with disabilities and their doctors. HIPAA of-ten complicates efforts to obtain medical input from health care professionals and FMLA rules regarding medical ex-aminations occasionally conflict with the ADA’s standards for obtaining such information. With these challenges in mind, we assist employers with the following:

• Developing Reasonable Accommodations Guidelines: We create reasonable accommodation guidelines that document an “interactive” dialogue whenever an em-ployee’s ability to work, or be at work, is impacted by a known physical or mental impairment.

• Implementing Return-to-Work and Transitional Work Programs: We help clients implement return-to-work and transitional work programs. We also ensure our clients have the technology necessary to track transitional work assignments in a manner that complies with ADA and FMLA rules.• Workplace Safety, including Workplace Violence: When OSHA subjects a business to an inspection, Jackson Lewis provides the necessary representation to ensure a client’s rights are fully protected. We have extensive agency ex-perience at the national and regional levels to enter into settlement negotiations and the expertise to contest cita-tions before the Occupational Safety and Health Review Commission, state safety and health commissions, and federal and state court review proceedings. To assist in compliance efforts and to reduce the likelihood of a cita-tion, we advise employers in developing safety programs and conducting preventive self-audits to pinpoint and remedy potential legal vulnerabilities.• Workplace Threat Prevention and Assessment Pro-grams: We draw upon our in-house legal and psychiatric expertise to craft interventions that reduce the likelihood of workplace violence, disability discrimination and neg-ligence claims. We also help assess whether employees pose a direct threat to themselves or others while per-forming their jobs.

Leave Management

Companies struggle to achieve business goals without a re-liable workforce. Federal and state law, most notably the FMLA and its corresponding rights to intermittent leave, impede employer efforts. Family caregiver responsibilities, and a growing thirst among employees for greater balance between work and family, further complicate strategies for improving attendance and productivity. Effective leave management requires employers to acquire “peripheral vi-sion” – the ability to identify and integrate federal, state and local leave entitlements with employer benefit pro-grams, including extensions of job-protected leave required for individuals whom may be disabled under federal, state or local law. Employers can and must develop operational certainty through consistently enforced, but flexible, leave policies. Development of internal systems for capturing and

communicating information about leaves is critical. With these thoughts in mind, the following are some of the leave management services we offer:

• Auditing and Modifying Leave Policies and Practices: We review leave polices to: (1) ensure compliance with the FMLA and state leave laws; and (2) develop a con-sistent approach to granting, denying or extending leave in conjunction with existing company policies. We also create forms and letters to help employers track absences and leaves.• Advising on Intermittent Leave Management: We be-lieve the key to effectively managing intermittent leave is obtaining as much information as possible when an employee first makes a request. We work with employ-ers to develop intermittent leave guidelines, with the goal of enhancing employee notice requirements for chronic illnesses and absences and minimizing the potential for employee fraud and abuse.• Auditing Long Term Leaves: We help clients identify individuals who are lingering on long term leave while receiving health insurance or other benefits paid for or supplemented by the employer. We then counsel employ-ers on how best to address these situations.• Developing Integrated Disability and Absence Man-agement Systems: Traditional benefit structures frustrate prompt and consistent delivery of benefits and increase legal exposure. Injured or ill employees unable to work due to a single injury or illness must frequently navigate through and communicate with a multitude of internal and external departments, vendors or other stakeholders. By segmenting responsibility for administering paid sick time, FMLA, workers’ compensation benefits, short and long term disability benefits, return to work programs, and ADA, employers create “silos” that undermine their business objectives. We assist employers in developing integrated disability and absence management systems that coordinate employment decision-making and ben-efit administration with the goal of reducing employment law risks; lowering health and disability benefit costs; improving attendance and productivity; and enhancing prompt treatment of employee injuries and illnesses and return to work.

Health Management

The best strategy for managing employee injuries and ill-nesses is to prevent them from occurring in the first place. If successful, such efforts significantly improve a company’s financial performance. We offer the following services to serve clients interested in launching programs designed to promote and preserve employee health:

• Health Promotion and Disease Management Pro-grams: We were one of the first law firms to write and speak about the various legal and practical issues com-panies must consider when designing and implement-ing workplace wellness programs. Combining our deep knowledge of a diverse range of law with our passion for solving business problems, we aim to be the nation’s leading legal resource for employers seeking to innovate in healthcare initiatives. Ever aware that the law is only beginning to emerge in this dynamic and politically-charged area of workplace law and employee relations, we provide strategic advice to in-house counsel and other internal stakeholders, including: drafting comprehensive “white papers” analyzing the legal and practical con-siderations in launching incentive-based health promo-tion and disease management programs; presenting to executive teams seeking to introduce these programs to their workforce; reviewing ERISA plan documents sum-marizing programs; drafting open enrollment forms and other communications explaining program requirements to plan participants; and advising on employee relations considerations of health management initiatives. • Work Injury Prevention Programming: Fear of em-ployment lawsuits discourages many employers from aggressively managing the threat of workplace injuries. This fear often vanquishes hope for improved produc-tivity and a competitive advantage by retaining valuable employees and reducing workers’ compensation costs. Aware that “doing nothing” may also raise significant business risks, our attorneys help employers take control over workplace injury risks by reviewing physical abil-ity testing programs, return to work policies, and other medical surveillance initiatives. Rather than block these efforts due to legal concerns, we partner with in-house counsel, human resources professionals, and injury pre-vention specialists to craft legally defensible programs.

• Drug Testing and Substance Abuse Management: We advise clients on all practical and legal aspects of work-place substance abuse programs including: assisting employers in determining whether there is “reasonable suspicion” to test an employee, in accordance with the standards of the applicable jurisdiction; advising em-ployers about appropriate disciplinary or rehabilitative actions to be taken after an employee has violated a sub-stance abuse policy; and integrating substance abuse test-ing with comprehensive occupational safety and health programs and workplace security programs. These pro-grams are widely-used to promote safety and security in the workplace, employee health and efficient job perfor-mance. Merely adopting and advertising such programs to applicants may deter individuals intent on abusing drugs and alcohol from pursuing employment with your company.

HIPAA and Workplace Privacy

Some of the most sensitive and private information about an individual’s health is held by his or her employer. That fact, coupled with the increasing use of electronic commu-nication, recordkeeping and surveillance tools, has led to increased regulation seeking to balance the employer’s need to use or disclose this information with an employee’s inter-est in keeping it private. We counsel employers regarding complex state, federal and international issues including HIPAA privacy; drug and alcohol testing information; and ADA, FMLA and NLRA privacy requirements. We work closely with clients to:

• Develop workplace privacy policies and procedures;• Train managers on whether, and to what extent, certain information may be used or disclosed;• Guide employers through disputes regarding the use or disclosure of privacy information; and • Defend litigation against employers accused of state and federal privacy violations.

Contact Jackson Lewis

To learn more about our services, please visit us online at jacksonlewis.com.

Dec13

jackson lewisPreventive Strategies and

Positive Solutions for the Workplace ®

All we do is work Workplace law.

a member of

®

Copyright © 2013 Jackson Lewis P.C.Attorney Advertising. Prior resultsdo not guarantee a similar outcome.

About Jackson Lewis

With over 765 attorneys practicing in nearly 55 locations

throughout the U.S. and Puerto Rico, Jackson Lewis provides

creative and strategic solutions to employers in every aspect of

workplace law. Recognized as the 2014 Law Firm of the Year

in the category of Litigation – Labor & Employment, and ranked

in the First Tier nationally in the categories of Employment and

Labor Law on behalf of Management in U.S. News – Best Lawyers®

“Best Law Firms,” our firm has one of the most active employment

litigation practices in the U.S.