Evaluate this before an injured worker returns

Do a job-specific fitness for duty evaluation

Even if a physician releases an employee to return to work, that employee might still be impaired and at risk for further injury. This risk is because the physician may not realize the job- specific functionality that is needed, warns Howard M. Sandler, MD, president of Sandler Occupational Medicine Associates in Melville, NY.

"The person being released to work is fine except for one little thing. If that person is prematurely released and injures themselves, those physicians are at risk for wrongful placement," he says. "There have been a number of successful litigation suits for inappropriate, too early return to work."

Sandler points to a Department of Labor provision that says once the employee's personal physician releases the individual to come to work from the Family and Medical Leave Act (FMLA), you have to put them back to work. "The problem is that few physicians understand what types of abilities are necessary to perform the job or the degree of impairment that is restricting for performance of job functions," says Sandler.

If the physician isn't able to correctly judge whether the worker meets the requirements to do the job without increased risk, there is a danger of the worker coming back and re-injuring him or herself. "They may let somebody come back just because they are running out of FMLA," says Sandler. "Our advice is pay them, but don't put them back to work until you have your own occupational physician perform a true occupational job-specific fitness-for-duty evaluation."

Without this information, you're at risk for making a "bad call," says Sandler. "The bottom line is not to keep people out of work, but to make sure they are off the right time and put back into the right job, according to what their current medical capabilities are," he says.

Give a detailed job description

To avoid a premature or uninformed release to return to work, take this precaution, advises John W. Robinson IV, a shareholder in the litigation department in the Tampa, FL, office of Fowler White Boggs Banker: Provide the medical professional with a detailed job description covering physical demands, emergency duties, hours, and responsibilities.

"Written job descriptions are a start," he says. "Some employers even videotape the demands of the necessary job tasks to share with applicants and medical professionals."

If the employee is re-injured or suffers new injuries after being released to work prematurely, he or she will likely recover workers' compensation benefits, adds Robinson. "Release to work limitations are not an exact science. Some employees perform better than others," says Robinson.

If you suspect a problem, Robinson recommends doing these things:

• Obtain a second opinion on the employee's release to return to work and ability to perform essential job duties.

• Ask the returning employee to demonstrate an ability to perform essential job duties, such as emergency functions.

• Allow employees to return on an experimental or conditional basis for a set time, with evaluation of performance afterward.

"Keep in mind that when rehiring an injured employee or sick employee, it is difficult to immediately discipline the employee," says Robinson. "The risk is discrimination or retaliation claims under family medical leave, disabilities laws, or workers' compensation."


For more information on steps to take before an employee returns to work, contact:

• John W. Robinson IV, Shareholder, Litigation Department, Fowler White Boggs Banker, Tampa, FL. Phone: (813) 222-1118. Fax: (813) 229-8313. E-mail: jrobinso@fowlerwhite.com.

• Howard M. Sandler, MD, President, Sandler Occupational Medicine Associates, Melville, NY. Phone: (631) 756-2204. Fax: (631) 756-2213. E-mail: drsandler@somaonline.com.