[Senate Hearing 112-335]
[From the U.S. Government Publishing Office]
S. Hrg. 112-335
STAY-AT-WORK AND BACK-TO-WORK STRATEGIES: LESSONS FROM THE PRIVATE
SECTOR
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HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
ON
EXAMINING STAY-AT-WORK AND BACK-TO-WORK STRATEGIES, FOCUSING ON LESSONS
FROM THE PRIVATE SECTOR
__________
MARCH 22, 2012
__________
Printed for the use of the Committee on Health, Education, Labor, and
Pensions
Available via the World Wide Web: http://www.gpo.gov/fdsys/
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Washington, DC 20402-0001
COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
TOM HARKIN, Iowa, Chairman
BARBARA A. MIKULSKI, Maryland MICHAEL B. ENZI, Wyoming
JEFF BINGAMAN, New Mexico LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington RICHARD BURR, North Carolina
BERNARD SANDERS (I), Vermont JOHNNY ISAKSON, Georgia
ROBERT P. CASEY, JR., Pennsylvania RAND PAUL, Kentucky
KAY R. HAGAN, North Carolina ORRIN G. HATCH, Utah
JEFF MERKLEY, Oregon JOHN McCAIN, Arizona
AL FRANKEN, Minnesota PAT ROBERTS, Kansas
MICHAEL F. BENNET, Colorado LISA MURKOWSKI, Alaska
SHELDON WHITEHOUSE, Rhode Island MARK KIRK, Illinois
RICHARD BLUMENTHAL, Connecticut
Daniel E. Smith, Staff Director
Pamela Smith, Deputy Staff Director
Frank Macchiarola, Republican Staff Director and Chief Counsel
(ii)
C O N T E N T S
__________
STATEMENTS
THURSDAY, MARCH 22, 2012
Page
Committee Members
Harkin, Hon. Tom, Chairman, Committee on Health, Education,
Labor, and Pensions, opening statement......................... 1
Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee 37
Hagan, Hon. Kay R., a U.S. Senator from the State of North
Carolina....................................................... 43
Witnesses
Watjen, Thomas R., M.B.A., President and Chief Executive Officer,
Unum Group, Chattanooga, TN.................................... 4
Prepared statement........................................... 6
Amato, Karen A., R.N., C.C.M., C.P.D.M., Director, Wellwithin and
Corporate Responsibility Programs, SRA International, Inc.,
Arlington, VA.................................................. 10
Prepared statement........................................... 11
Walters, Christine V., M.A.S., J.D., S.P.H.R., Sole Proprietor,
FiveL Company, Westminister, MD................................ 17
Prepared statement........................................... 19
Buehlmann, Eric, J.D., Arlington, VA............................. 23
Prepared statement........................................... 25
Mitchell, Kenneth, Ph.D., Managing Partner, Work RX Group, Ltd.,
Worthington, OH................................................ 28
Prepared statement........................................... 30
(iii)
STAY-AT-WORK AND BACK-TO-WORK
STRATEGIES: LESSONS FROM
THE PRIVATE SECTOR
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THURSDAY, MARCH 22, 2012
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 10:15 a.m. in
Room SD-430, Dirksen Senate Office Building, Hon. Tom Harkin,
chairman of the committee, presiding.
Present: Senators Harkin, Alexander, and Hagan.
Opening Statement of Senator Harkin
The Chairman. The Senate Committee on Health, Education,
Labor, and Pensions will please come to order.
Our topic today is, ``Stay-at-Work and Return-to-Work
Strategies: Lessons from the Private Sector.'' This is the
latest in a series of hearings that we have convened since last
March--that is a year ago--to explore issues that impact the
employment of people with disabilities in America.
Of course, our goal is to boost the labor force
participation for people with disabilities. To achieve this
goal, we must both create pathways for people with disabilities
to join the labor force, but we must also have policies in
place to help Americans who have disabilities after they enter
the workforce to get the support they need to stay employed.
Over the past 4 years, we have seen the devastating impact
of the economic recession on people with disabilities.
Thankfully we see, perhaps hopefully, a turnaround, new jobs
being created each month, the unemployment rate overall has
decreased. But that has not been the case for people with
disabilities.
While the unemployment rate for the general public has
decreased by a full percentage point from last year February to
this year, during the same time period, the unemployment rate
for people with disabilities actually went up. It went up by
almost half a percentage point from 15.4 to 15.8 percent,
according to the Bureau of Labor Statistics. Moreover, the
number of Americans with disabilities participating in the
labor force has gone down by more than 500,000 workers since
the recession began in 2008.
One of the ways to address this stubborn problem of
unemployment and underemployment of people with disabilities is
to make sure they do not leave the labor force if they already
have a job, and to make sure that those who acquire
disabilities can remain in their job, and that is what this
hearing is about today.
We have asked a number of representatives from the private
sector to share with us strategies to keep people at work or to
help them return to work. We know that a complex array of
factors--social, medical, psychological, and workplace
practicalities--come into play when an adult acquires a
disability.
We will hear about the supports that employers can provide
in terms of accommodations and adaptations to the work
environment. We will also hear about how employees, employers,
family members, as well as health and medical professionals can
work together to keep people in their jobs or return as quickly
as possible to their jobs.
I want to point to one concern I hear about very often when
a person with a disability is returning to work, and that is
the cost of making accommodations for that individual. Contrary
to popular belief, the data does not show that. It shows that
the cost of making workplace accommodations for people who have
acquired a disability is very low.
In 2006, the Job Accommodation Network, JAN, conducted a
survey of almost 1,200 employers and found over 50 percent of
the workplace accommodations that were needed to have people
with disabilities hold a job, actually, cost nothing; the rest
was in the range of $500.
We look forward to learning more about how these types of
accommodations and other strategies in the workplace can keep
people at work who acquire disabilities or help them return to
work.
We have a very distinguished panel here today, and I want
to thank all of them, right now, for being here and testifying,
and giving good written testimony. I read them all last night
and they are very good.
Before I begin, I want to make sure that I leave the record
open for any opening comments by our Ranking Member, Senator
Enzi, who I know is on the floor now, so hopefully, he will be
here after he finishes his duties on the floor.
The Chairman. Let me introduce our witnesses, and we will
get right to it. I will go from left to right.
Mr. Thomas Watjen, the CEO and president of Unum Group,
serving that since 2007. Under Mr. Watjen's leadership, Unum
has achieved strong, sustainable, financial results while
expanding its market leadership position in building a culture
of responsibility, which has earned the company a spot on
numerous, ``Best Places to Work'' lists.
Mr. Watjen joined Provident, a Unum predecessor, in 1994 as
executive vice president and chief financial officer, was later
named vice chairman and director. Previously, he was a managing
director at the investment banking firm of Morgan Stanley and
Company, a partner with Conning and Company, and worked in
corporate finance and investments for Aetna Life and Casualty.
Next, we have Miss Karen Amato, director of Corporate
Responsibility Programs for SRA International, and is
responsible for providing leadership, strategic direction, and
implementation of SRA's integrated in-house disability
management and transitional work programs. She is a registered
nurse of 36 years, a certified case manager, and a certified
professional in disability management.
Next is Miss Christine Walters, an independent consultant
at the Five L Company, an author also, specializing in coaching
employers how to maintain quality employees within their
company, including employees with disabilities. She is the
author of ``From Hello to Goodbye: Proactive Tips for
Maintaining Positive Employee Relations.''
She has 25 years combined experience in human resources
administration, management, employment law practice, and
teaching, and is an expert on developing return-to-work
programs for employees with disabilities.
Next, we have Eric Buehlmann, who had a stroke during his
last semester of law school, while working part-time for U.S.
Senator Jim Jeffords. Eric's stroke led to paralysis on his
left side, loss of vision, and some memory and attention
issues. Following a period of recovery and rehabilitation, Mr.
Buehlmann was able to return to law school, finish, and return
to work for Senator Jeffords with the help of necessary
accommodations.
Mr. Buehlmann worked for Senator Jeffords for 12 years,
including a time as acting legislative director, and has since
gone on to be the deputy executive director for Public Policy
at the National Disability Rights Network.
I might also note for the record that Mr. Buehlmann is the
son of Beth Buehlmann, a very valuable member of our staff here
on the HELP Committee.
Finally, we have Dr. Ken Mitchell, the moderator for the
Burton Blatt Institute at Syracuse University's Employer
Research Consortium. Over 30 years of experience consulting
employers on effective strategies to keep people with
disabilities at work. He is also the managing partner at the
Work Rx Group, which assists employers of all sizes and
industries to reduce the impact of injury, illness, and chronic
disease in their workplace.
Prior, Dr. Mitchell was the president of the National
Rehabilitation Planners, and the executive director of the
International Center for Industry, Labor, and Rehabilitation.
He was also the vice president of Health and Productivity
Development at Unum. I did not know that until I just read
that. I look forward to hearing his testimony also. I look
forward to all of them.
I will say at the outset that all of your statements will
be made a part of the record in their entirety. If you could
sum up in several minutes or so, I would be most appreciative,
and then we can get into a discussion.
Thank you all for being here. Thank you for all your
leadership in this area for so many years. And as I said, we
have been having these hearings for about a year now, and we
continue to try to develop the record, and find out what it is
that we need to do especially in this area of keeping people
with disabilities, when they get an onset of disabilities, how
we keep them in the workforce. People have expertise. They have
professionalism. It is a shame to lose them out of that
workforce, and all of you have been involved in that, and I
thank you for that.
We will start with you, Mr. Watjen. It is good to see you
again. Welcome to the committee.
STATEMENT OF THOMAS R. WATJEN, M.B.A., PRESIDENT AND CHIEF
EXECUTIVE OFFICER, UNUM GROUP, CHATTANOOGA, TN
Mr. Watjen. Good to see you, Chairman, and thank you very
much to you--and the other members who, I know, will be joining
us here this morning--for the opportunity to testify today.
As you pointed out, you have a written testimony, so I will
keep my comments fairly brief, but maybe start with an
introduction to our company.
Unum is actually the leading provider of employee-sponsored
benefits, both in the United States and the United Kingdom.
What that means is we work with employers to provide benefits
to their employees in the workplace that includes disability
income protection coverage, life insurance, and accident
coverage. But since the focus of this hearing is obviously on
disability, I will contain my remarks primarily to our
disability business.
To frame that out for you, if I can. In 2011, our U.S.
operation actually worked with about 60,000 employers to cover
8.5 million of their employees for disability protection, and
we paid out about almost $4 billion in benefits to our
disability customers in the United States in the course of
2011.
Just briefly, a couple of points to put our industry in
perspective. We insure individuals for a broad range of
disabilities, from temporary to more permanent conditions. The
benefits typically begin within 1 week to 3 months after a
disabling event occurs, and 96 percent of our customers are on-
claim for fewer than 2 years.
The coverage not only replaces income lost due to the
disability, but also provides support throughout that time they
are on disability, including return-to-work services, which I
will come back to in a moment and share with you some of those
return-to-work services that the individual receives over that
particular point in time.
Our goal is a simple one, which is to help the disabled
stay at work or return to work, if possible, and allow them to
maintain a lifestyle similar to what they had before actually
having the disabling condition.
Let me speak to how that affects both consumers, a little
bit about what it means for the employers and, frankly, what I
think has some very positive public policy implications as
well.
Starting with consumers, quite frankly, we are always
surprised at how few people fully understand what their
exposure to disability can be. In fact, over the course of a
working lifetime, there is a 33 percent chance that someone
will become disabled for 6 months or more; a fairly significant
probability that something like that can happen.
As you look at the state of America today, as we know, most
households live paycheck to paycheck, so most American families
are ill-prepared to deal with the consequences of lost income,
even for a very, very short period of time. The result is that
disability can cause a real financial hardship for many
individuals and their families. Often, the only recourse is to
draw from our scarce public programs, or maybe in more extreme
cases, file for bankruptcy which, obviously, is not a good
outcome.
Income protection coverage can provide the financial
support to allow individuals and their families to retain an
adequate standard of living, along with the assistance needed
to help them return to work, which as I mentioned earlier, I
will spend a few more minutes talking about what that
assistance looks like.
Employer-sponsored benefits, which is the business that we
are in, are particularly attractive for the lower and middle
income workers who are unlikely to have affordable access to
these sorts of protections outside of the workplace.
From the employer's point of view, we find that most of our
employer customers and companies do value the ability to
provide benefits to their workers in the workplace. It helps
with recruiting and retaining the right kind of people, and
therefore is valued. And frankly, it only costs about $20 to
$30 per person per month to provide that coverage. It is a very
modest cost. This is something that all employers can provide,
both large and small employers.
Just one note on the public sector implications, I do think
the more we connect with providing this coverage on a private
basis to Americans, it does have a positive impact on some of
the resources that are here in Washington.
According to a study that we commissioned with the Charles
River Associates, private income protection insurance prevents
about almost 600,000 families from having to seek public
assistance, which actually saves the Government about $4.5 to
$5 billion per year. And I would point out that roughly 30
percent of the workers in the workplace actually had disability
insurance, so the other 70 percent do not, which is obviously
the opportunity for us.
Let me speak briefly to the assistance we provide, because
it is more than just a financial assistance. For starters,
obviously, the financial assistance is important. We provide
financial protection. We actually insure roughly 60 to 70
percent of the individual's income so they have something that
they can live on over the course of their disability condition.
However, as I said, it is much more than that.
We find that by connecting very early, and developing a
very early and open conversation with our customers and the
physicians that may be involved in the particular case, and the
employer, that there is a lot more we can bring to helping
people get back to work by having that three-point set of
discussions, again, between the individuals, the employer, and
the attending physician.
Our primary communication, however, is with the claimant
who often is looking for help as they do not know where to turn
through these early contacts, which start as soon as a claim is
filed, and in some cases, actually before a claim is filed. We
work to build an open dialog with our customer.
Through these contacts, we begin to develop a realistic
plan including the needed support for returning to work. We
find that most people want to return to work and want help
doing so. As you might expect, the longer a person is out of
work due to disability, the less likely they are eventually to
return to work. Each claim is different and through our early
contact, we quickly decide what resources and level of support
is needed to assure that we have the right expertise involved
and that everyone is working toward a common goal.
The level of support a claimant requires can vary
significantly, often it is enough simply to have the claimant
set up with a very simple return-to-work plan where our ongoing
involvement is more touching base from time to time to be sure
that that plan is going as expected.
For those with greater needs, we partner with the employer,
the attending physician, and others to support the employee's
return-to-work goals. This often is a very specific plan which
might include many different things that we can provide. For
example, a flexible work schedule in order to facilitate a
gradual return-to-work program, workplace modification,
retraining, vocational rehabilitation, use of adaptive
equipment tailored to address the specific impairment the
individual is facing. There is a whole host of different things
that we can bring to bear but, again, it is very specific to
the specific claim that we are dealing with.
As you might imagine, this process requires significant,
specialized resources and our company has, for example, almost
1,000 professionals supporting this part of our business alone.
Again, the key to all of this is establishing a very early
dialog with the individual and providing the support that they
need. The result is that the vast majority of our claimants
successfully return to work. And as I said earlier, 96 percent
of our claimants are on-claim for less than 2 years looking at
the indication of how quickly they can get back to work.
I continue to believe there is more that we can do
together, between the public and private sector. Obviously, we
play a very, very important role in helping people to get back
to work and providing services beyond just the financial
support.
There is more that we as an industry can do to help with
that. Education is a big part of that, but it is also being
sure that we simplify our products, and continue to make them
more affordable and more accessible to all Americans.
I look forward to working with the committee further, Mr.
Chairman, on that and address your questions in the question
and answer session.
[The prepared statement of Mr. Watjen follows:]
Prepared Statement of Thomas R. Watjen, M.B.A.
introduction
Mr. Chairman, members of the committee, thank you for the
opportunity to testify before you today. Unum employs approximately
10,000 people with major operations in Tennessee, Maine, Massachusetts
and South Carolina. We are a market leader in employer-sponsored
disability, life, critical illness, and accident protection with more
than 160 years experience.
Although as noted Unum provides an array of workplace benefits,
given the subject of this hearing, my comments today will address
disability income protection only. In the United States, we provide our
disability products to approximately 60,000 companies--from Fortune 500
companies to small businesses--protecting more than 8.5 million people
and their families. In 2011, we paid our U.S. customers approximately
$3.8 billion in disability benefits alone.
The committee's focus today on the private income protection
industry is very important because it helps highlight how surprisingly
common a work limiting illness or injury is and how to minimize the
impact when this occurs.
Income protection insurance policies generally replace about 60
percent of a person's income should he or she become unable to work due
to injury or illness. Typically payment begins within a week or two
after someone leaves his or her job for short-term disability claims
and within 3-6 months for long-term disability claims. A key component
of income protection insurance is the immediate assistance provided by
experienced specialists, which reduces the impact of disability and
maximizes the chances of someone returning to work. Approximately 96
percent of our customers are on claim for fewer than 2 years.
I will focus on three main points in my testimony today. First, the
value of income protection insurance to individuals, employers and the
Government. Second, the approach the private sector takes in assisting
someone when they become disabled. Third, the opportunities the private
and public sector have to work together to expand these important
protections.
value of private income protection coverage
Consumers
Sixty-one percent of Americans live paycheck to paycheck. At the
same time, few understand that the average worker has a one in three
chance of becoming disabled for 6 months or more during his or her
working life. Despite this statistic, most Americans are unprepared for
the consequences of losing an income even for a short period of time.
The result is that a disability can cause real financial hardship for
many individuals and their families, and often their only recourse is
to draw upon scarce public safety net programs that may only replace a
modest portion of their earnings.
Income protection insurance can provide the financial resources to
allow individuals and their families to retain an adequate standard of
living. This coverage also offers important benefits beyond income
replacement. People covered by this protection enjoy the benefit of
many support services, including experts whose goal it is to help
claimants understand and deal with the onset of disability. This
support in turn maximizes the potential for someone to return to work.
Employers
There is considerable value for employers who make income
protection coverage available to their employees, particularly with
regard to workforce recruitment and retention. Studies consistently
demonstrate that employees care about these types of benefits and are
more loyal to companies that offer them.
The workplace is an effective way to ensure consumers can access,
afford and understand the need for income protection. Ninety percent of
income protection insurance is sold through the workplace, providing
access to a broad range of employees at differing income levels. Income
protection insurance is affordable with premiums often as low as just
$20 to $30 per month. Most of the time, income protection premiums are
paid by the employer or the cost is shared with the employee. The
workplace also serves as an important place for employers to educate
consumers about the need for this type of financial protection,
particularly given the trusting relationship that most employees share
with their employers.
Private income protection insurers also help employers better
manage their business by maximizing productivity and minimizing
absence. Studies show that disabilities can cost employers upwards of
15 percent of payroll. By increasing the potential for returning to
work after illness or injury, employers can save on the expense of
recruiting and training replacements, and can reduce health care costs
as well.
Unum often collaborates with employers to help them understand and
manage the impacts to their business of lost time due to disability.
Small employers especially can benefit from the expertise offered by
companies like Unum because they are less likely than larger employers
to have experience in dealing with employees who become disabled.
The Government
Individuals with private income protection coverage that become
disabled are much less likely to require support through government
assistance programs, greatly benefiting taxpayers.
Last year, Unum commissioned a study by Charles River Associates to
assess the value of employee benefits with a specific focus on
disability protection provided in the workplace. The study found that
the industry saves taxpayers up to $4.5 billion per year by eliminating
the need to rely on public assistance programs such as Temporary
Assistance for Needy Families, the Supplemental Nutrition Assistance
Program, and other related welfare programs. The industry prevents
575,000 families from becoming impoverished. The study shows that
poverty among working adults who become disabled during their working
careers could be virtually eliminated if all workers had some form of
standard employer-sponsored income protection insurance.
Private income protection insurance offers access to resources that
help get people back into the labor force. This in turn has a positive
impact on public sector disability-related programs.
private sector assistance to disabled employees
Private income protection provides a disabled worker with about 60
percent of his or her regular income. With this assistance, the
employee can maintain a basic standard of living while focusing on
recovering, and then returning to work. In most cases, covered
employees who become disabled are able to return to work within 2
years, in part because of our efforts.
As soon as a disabled employee files a claim, Unum begins
discussions with that employee and his or her medical provider, as well
as the employer. By far the most important communication, however, is
with the employee directly. Unum claims professionals are trained to
have collaborative dialogs with claimants that include understanding
the motivational aspects related to returning to work and the
anticipated length of a person's recovery. The world of disability is
unchartered territory for most employees, and Unum guides them through
this difficult landscape by building a trusting and supportive
relationship with the common goal of helping the employee recover and
return to work.
Through this approach we can proactively triage claims and
effectively direct appropriate professional resources on an individual
basis. At Unum we have almost 1,000 physicians, nurses, and vocational
rehabilitation consultants and claims specialists in place to provide
this assistance. When hiring and training our professionals, we pay
special attention to ensure they reflect our high standards of customer
service.
For example, we have developed a detailed hiring profile which
allows us to target the most appropriately skilled and suitable
candidates for claims handling positions. Once we hire a suitable
candidate, we build expertise through 10 weeks of comprehensive
classroom learning. Upon completion of this training, each claims
specialist is assigned an experienced mentor for another 18 months
during which time they undergo advanced skill training. We also provide
ongoing career development and training focused on all important
elements of the claim review process, including medical, vocational,
regulatory, and customer relationships. In sum, our employees receive
intensive initial and ongoing training to ensure they are as prepared
as possible to support the customer in their time of need.
Early intervention and timely communications are critical to
successful return-to-work outcomes. The frequency and the nature of
these conversations are examples of the industry's evolution as well as
our own focus on customer service. In recent years, changes have been
driven in part due to advances in adaptive technology, as well as a
focus on accommodation required by legislation such as the Americans
with Disabilities Act.
The level of support a claimant requires can vary significantly
based on need. Often, the only professional resource that is needed to
assist a claimant in their desire to return to work is communication
between the claimant and the claims representative. In many cases, it
is enough to help him or her establish a return-to-work plan, then
periodically followup with the claimant as they recover. When
appropriate, our physicians speak with the claimant's medical provider
and discuss their potential work capacity. In other instances, we help,
with the involvement of the employer, to create job modifications such
as a change in working conditions and ergonomic improvements as well as
rehabilitation and career assistance.
The consistent rise in healthcare costs has also contributed to the
development of comprehensive health and productivity strategies. Health
plans, prevention programs and disability insurers can no longer afford
to exist in silos. High incidents of disability often result in higher
health care costs and reduced productivity. As a result, if an employer
can decrease the frequency and length of disability claims, it will
also have an opportunity to reduce medical costs.
Reducing disability claim incidence and length can include
strategies that may begin before an employee leaves the workforce as
well as return-to-work efforts for those who are absent from work.
Effective strategies include condition management, absence management,
and disability management.
Condition management keeps employees with disabilities on the job.
Typically, these services are provided to employees who have not yet
filed a claim and continue to work, but whose future attendance and/or
job performance may be at risk. In some cases, services are designed
not only to help the employee remain in their occupation, but to help
the employee consider a job change with the same employer if
appropriate. Examples of these types of services involve working with
the employer's human resources department or front line managers by
providing training and reasonable accommodations.
Absence management includes developing transitional return to work
and stay-at-work plans. These programs are designed to gradually
transition a worker from a less than full capacity work status to a
full duty work status by modifying tasks and/or hours so that he is
able to incrementally heal and increase productivity during the
recovery process from an illness or injury.
With regard to disability management, for those employees who do
experience an absence from work, Unum specializes in assisting an
individual's rehabilitation, when appropriate, by helping them develop
a return-to-work plan. Factors considered in developing the plan
include age, type of disability, work history, education, job
preferences, and return-to-work opportunities.
We use many tools to develop individually tailored return-to-work
plans, including:
Regular telephone contact with the individual needing the
services by one of Unum's claim representatives and/or by one of Unum's
certified rehabilitation counselors;
A detailed job analysis of the tasks the individual is or
was performing;
A functional capacity evaluation designed to determine the
level of recovery/medical improvement, in order to better understand
which work tasks the employee is capable of performing;
Medical records and focused return-to-work planning
discussions with the employee's treating medical provider; and
Partnering with State-based job placement and vocational
assistance programs.
A customized support plan may include the following services:
Coordination with the employer to help the employee return
to work;
Identification of adaptive equipment or job accommodations
that could enable the employee to resume job duties;
A vocational evaluation to determine how the employee's
disability may affect his or her employment options;
Job placement services;
Resume preparation; and
Job-seeking skills training.
As part of the return-to-work plan, Unum provides a designated
vocational professional to help coordinate all of its aspects. Often
modifications that have been agreed to by the employer, employee and
Unum before implementation need to be monitored and adjusted to help
ensure a successful re-integration into the workforce.
It is also important to note that our insurance contracts generally
contain additional benefit provisions which can directly assist a
successful return to the workforce. Examples of these provisions
include providing enhanced financial support to employees returning to
work on a gradual basis, dependent care benefits, immediate resumption
of benefits if there is a recurrence of disability within a specified
timeframe, and educational/training benefits. All of these contractual
features are designed specifically to give insured employees support
beyond direct vocational assistance.
opportunities for public/private partnership in dealing with disability
in the workforce
The private income protection insurance industry and the Government
have opportunities to work together on the shared objective of making
financial protection more accessible and affordable for American
workers.
Government can play an important role by helping to raise awareness
with consumers, employers, and others about the risks and consequences
of disability. The evolution of the private sector tracks advances in
public policy as well. Most notably, the Americans with Disabilities
Act and the 2008 amendments have prompted employers to move beyond
providing reasonable accommodations to programs and policies that
involve a more interactive process. More employers are offering
workplace flexibility through transitional return to work and are
refraining from inflexible termination policies in order to ensure that
they do not create the unfortunate situation in which loss of
employment occurs without proper consideration of the insured's
condition.
In addition, the industry must continue to do its part by helping
to educate consumers about the need for coverage but also continuing to
seek ways to simplify our products and make these more affordable to
all Americans.
conclusion
Mr. Chairman, let me conclude by reemphasizing the crucial role
that private income protection insurers serve in protecting American
families and maximizing the potential for someone in the workforce who
experiences a work limiting illness or injury to return to their job.
Although each case is unique, and while there is no one solution
that works for everyone, we have found that the best recipe for
successful return to work is a committed insurer with superior claims
handling and support, an employer committed to its workforce, and an
individual motivated to return to productivity.
Too few Americans are covered by private income protection. A
worker is three times more likely to become disabled than to die before
retirement, yet is much more likely to have life insurance than income
protection insurance. Our experience is that the lack of awareness of
the risk of disability and the affordable ways to insure against the
risk are the biggest impediments to more Americans being protected.
That is why this hearing is so important.
I would be happy to answer any questions the committee may have.
The Chairman. Thank you very much, Mr. Watjen. I am going
to have some questions along why it is 70 percent.
Mr. Watjen. Yes.
The Chairman. But anyway, we will get to that.
Miss Amato, welcome. And again, as I said, I will not
repeat this any longer, your statements will be made a part of
the record. And again, just in your own words, sum it up.
Appreciate it.
Ms. Amato. Good morning.
The Chairman. Thank you.
STATEMENT OF KAREN A. AMATO, R.N., C.C.M., C.P.D.M., DIRECTOR,
WELLWITHIN AND CORPORATE RESPONSIBILITY PROGRAMS, SRA
INTERNATIONAL, INC., ARLINGTON, VA
Ms. Amato. Good morning Mr. Chairman and Ranking Member
Enzi. My name is Karen Amato, and I am the director of
Integrated Disability Management, Safety and Wellness Programs
for SRA International based in Fairfax, VA. SRA International
employs about 6,500 employees located in more than 50 locations
around the world. I have over 21 years of experience managing
disability and return-to-work programs, as well as 36 years as
a registered nurse.
I thank you for the opportunity to testify on employer
approaches to disability management and return-to-work
strategies. I appear before you today on behalf of the Society
of Human Resource Management or SHRM, which I have been a
member since 2008, and we are pleased to have Senator Enzi, a
SHRM member, as well.
My comments will address my experience with large employers
that have faced challenges and successes, keeping and bringing
employees with disabilities back into the workplace. At the
outset, let me note that SHRM and its members have a long
tradition of working to increase employment opportunities with
people with disabilities.
Since 2006, SHRM has enjoyed a partnership with the
Department of Labor's Office of Disability Employment Policy.
SHRM was also pleased to include among employer and disability
associations that collaborated with you, Senator Harkin, on
crafting the Americans with Disabilities Amendments Act, which
was signed into law by President Bush in 2008. Chairman Harkin,
we thank you for including SHRM in the legislative process that
produced the ADA Amendments Act.
In my experience, and particularly in light of the expanded
definition we now have for disability under the ADA Amendments
Act, there are several successful strategies that some large
employers have incorporated into effective disability
management programs that I would like to describe.
First, when employers engage an employee early in the
return-to-work process, it can allow the organization to
simultaneously meet their business needs and also reduce the
financial impact on the employee and his or her family, which
is significant.
Establishing an onsite case management or return-to-work
coordinator allows companies to provide individual assessments
and intervention based on an employee's specific impairment.
Employers can provide creative accommodations, such as
workplace redesigns, adaptive equipment, or can sometimes find
simple solutions such as a keyboard tray or a specific mouse
for carpal tunnel syndrome.
Accommodations can include flexible work schedules such as
defined flexible work schedules and telecommuting. Certainly,
some accommodations can be very complex, and may require a
third party expert assistance and expensive changes, but many
of these enhancements help employees to perform their jobs.
Second, there is a tremendous value for both employers and
employees in preventative strategies. Wellness programs, onsite
fitness facilities, weight management, and smoking cessation
programs, and onsite health screenings, just to name a few, are
initiatives that enhance team building and overall health of
the employees. These programs can ultimately reduce the
incidence of injuries and illnesses through education and
action, as well as help employees with impairments to remain
active at work.
The third recommendation is for large employers to clearly
define policies and jobs. Employers must ensure that their
transition back to work programs have written guidelines, light
duty and regular duty job description, and formalized training
to new tasks and processes that will be involved to ensure
consistency.
Finally, incentivizing work while transitioning employees
from disability into the workplace, and engaging employees is
also important. Large employers can minimize employee issues
through such programs as employee assistance and back-up
support care. To keep employees engaged, employers can give
employees that are on medical leave, voluntary continued access
to employer resources such as the Internet or communication
systems, if that is approved by their healthcare provider.
In closing, Mr. Chairman, I want to be clear that while
some of these suggestions for disability management tactics may
work for different employers and their employees, all the
suggestions are circumstantial. There is obviously not one
simple one-size-fits-all--and we know that--solution for every
employer of every size and in every industry. But in the end,
proactive employer interventions and prevention efforts can
help employees return to work or stay at work, and that
improves the bottom line for both employers and families.
I thank you again, and I thank the committee for listening
to my perspective, and I am happy to answer your questions.
[The prepared statement of Ms. Amato follows:]
Prepared Statement of Karen A. Amato, R.N., C.C.M., C.P.D.M.
introduction
Good morning Chairman Harkin, Ranking Member Enzi, and
distinguished Senators. My name is Karen Amato, and I am director of
the integrated disability management, wellness and safety programs for
SRA International, Inc. in Fairfax, VA. I appear before you today on
behalf of the Society for Human Resource Management (SHRM), of which I
have been a member since 2008. I am also a member of the Northern
Virginia SHRM chapter (NOVA SHRM). I thank you for this opportunity to
testify before the committee on employer approaches to disability
management and the general opportunities and challenges around return-
to-work strategies for employers. My comments will address my
experience with large employers that have faced the challenges and
successes of bringing employees with disabilities back into the
workplace.
I commend you both for holding this hearing on this meaningful
topic. By way of introduction, I have over 21 years of experience
managing disability and return-to-work programs, worksite wellness,
safety programs and HR administration, as well as 36 years as a
registered nurse.
SHRM is the world's largest association devoted to human resource
(HR) management. Representing more than 260,000 members in over 140
countries, the Society serves the needs of HR professionals and
advances the interests of the HR profession. Founded in 1948, SHRM has
more than 575 affiliated chapters within the United States and
subsidiary offices in China and India.
SRA International, Inc. is dedicated to solving complex problems of
global significance for government clients in defense, intelligence/
homeland security/special operations, health and civil agencies. SRA
International, Inc. employs more than 6,500 people located in more than
50 locations around the world.
In today's economy, organizations must compete in the global market
for skilled, dedicated employees, while managing their labor costs and
expenses to remain competitive. HR professionals and employers must
also address how to manage their business when faced with challenges
such as employee absences, added workload for colleagues, and the
impact on productivity and morale due to disability or illness.
Proactively keeping employees at work who are experiencing impairments
and transitioning employees who have experienced a disability back into
the workforce has value to the employer in mitigating some of this
impact while meeting the individual employee's needs. However, even
employers with very comprehensive programs can experience challenges
with these programs.
shrm and the americans with disabilities act
SHRM and its members have a long tradition of promoting effective
practices for advancing equal employment opportunity for all people,
including individuals with disabilities. SHRM strongly supports the
goal of increasing the employment of people with disabilities, and
believes that the Americans with Disabilities Act (ADA) strikes the
appropriate balance between the needs of individuals and employers.
SHRM places a priority on developing educational materials and
initiatives for HR professionals on hiring individuals with
disabilities. SHRM has been a partner with the Department of Labor's
Office of Disability Employment Policy for this purpose since 2006.
SHRM created a Disability Employment Resource Web page that offers its
members a wealth of resources, articles and links to help source,
recruit, retain and develop people with disabilities. SHRM also
provides training through conference programming and webcasts to its
members on disability law and effective employment practices. SHRM's
member organizations regularly engage in outreach efforts to civil
rights and disability organizations, both as part of their current
affirmative action obligations and as a sound business practice.
The ADA was enacted in 1990 to protect individuals with
disabilities from discrimination in employment, public services and
public facilities. The ADA prohibits discrimination against current
employees and job applicants by employers that employ 15 or more
individuals, and requires such employers to provide reasonable
accommodations to employees who have known disabilities. The ADA
defines ``disability'' as ``a physical or mental impairment that
substantially limits one or more of the major life activities of such
individual.'' Individuals must meet this disability standard to be
eligible for the ADA's nondiscrimination and accommodation coverage.
In 2008, SHRM and other employer associations reached an agreement
with disability advocacy organizations to address a handful of Supreme
Court holdings in the preceding decade (including Sutton v. United
Airlines [1999] and Toyota Motor Manufacturing Kentucky Inc. v.
Williams [2002]) that had narrowed the definition of disability under
the ADA. The resulting deal led to the ADA Amendments Act (ADAAA),
which was authored by you, Chairman Harkin, and passed both houses of
Congress unanimously before being signed into law by President Bush in
2008.
SHRM continues to believe that law strikes an appropriate balance
between the needs of individuals with disabilities and the obligations
of HR professionals under the ADA. On one hand, the ADAAA affirms that
Congress intended the ADA's coverage to be broad, to cover individuals
who face unfair discrimination because of a disability. On the other
hand, the ADAAA also retained the ADA's individualized assessment of
employees to prevent employers from being exposed to excessive
liability.
Chairman Harkin, we commend you for sponsoring the ADAAA and for
including SHRM in the legislative process that produced the 2008 law.
shrm research on disability employment
SHRM has collaborated with the Cornell University ILR School
Employment and Disability Institute on a research study about
organizational policies and practices related to employing people with
disabilities. This series of research findings also analyzes what
metrics organizations track for all employees and employees with
disabilities and any barriers organizations experience with employment
or advancement for people with disabilities. The survey of more than
600 HR professional respondents will be released in three parts: (1)
Recruitment and Hiring, (2) Training, and (3) Retention and
Advancement.
The purpose of the first, soon-to-be-released survey results is to
provide new insights into the differences in HR practices in hiring and
retaining individuals with disabilities and the relationship between
these practices and positive employment outcomes.
The survey's key findings are:
Most employers have policies and practices related to the
recruitment and hiring of people with disabilities--Nearly two-thirds
(61 percent) of organizations indicate including people with
disabilities explicitly in their diversity and inclusion plan, 59
percent require sub-contractors/suppliers to adhere to disability
nondiscrimination requirements and 57 percent of organizations stated
having relationships with community organizations that promote the
employment of people with disabilities.
Effectiveness of policies and practices--Organizations
believe that requiring sub-contractors/suppliers to adhere to
disability nondiscrimination requirements (38 percent), including
people with disabilities explicitly in diversity and inclusion plans
(29 percent), and having explicit organizational goals related to the
recruitment or hiring of people with disabilities (34 percent) were
very effective practices.
Larger organizations are more likely to have policies and
practices related to recruitment and hiring in place compared with
smaller organizations. Publicly owned for-profit organizations also are
more likely to have some policies and practices related to recruitment
and hiring in place compared with privately owned for-profit
organizations and nonprofit organizations.\1\
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\1\ Society for Human Resource Management and Cornell University
ILR School Employment and Disability Institute (2012). SHRM Survey
Findings: Employing People with Disabilities--Practices and Policies
Related to Recruiting and Hiring Employees with Disabilities.
---------------------------------------------------------------------------
key areas for managing the impact of disability in the workplace
Although there are fundamental elements of a successful strategy in
managing disability in the workplace, there is not a simple ``one-size-
fits-all'' solution for every employer. Employers and human resource
professionals must balance pressing business objectives against common
challenges associated with return-to-work strategies.
The success of the strategy will depend on the extent to which
employers are able to mitigate the negative impact, while
simultaneously meeting the employee's needs. The business imperatives
of the employer and the abilities of the affected employee will inform
determinations regarding appropriate return-to-work (RTW) solutions
which are considered in conjunction with the employer's statutory
obligations and protection of the individual's rights under the Family
and Medical Leave Act (FMLA), the Americans with Disabilities Act and
the Americans with Disabilities Act Amendments Act, among other
regulations. However, there are a few key areas for managing
disabilities in the workplace:
Disability Impacts the Entire Family: Work is important to
people and is a large part of what defines them. Prolonged absence from
work impacts the family not only financially, particularly in single
parent homes; but it also affects employees' emotional well-being.
Experienced professionals recognize that the longer employees are out
of work due to disability, the more likely they are to become
disconnected from the employer and the benefits they receive from
working. Intervening to help employees stay at work or transition back
into the workplace quickly following a disability not only improves
their recovery, it also enhances their self-image and reduces stress on
their families. It also enhances their commitment to their employer as
an employer of choice. It has become apparent that there are
opportunities for large employers to take proactive steps that will
better position them to retain disabled employees on the job. According
to a report by the Government Accountability Office, an injured or
disabled worker who remains out of work for more than 6 months has only
a 50 percent chance of returning to work at all.\2\
---------------------------------------------------------------------------
\2\ U.S. Government Accountability Office, Health, Education and
Human Services Division (1996). Return-to-Work Strategies From Other
Systems May Improve Federal Programs. http://www.gao.gov/assets/160/
155504.pdf.
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Proactive Interventions and Prevention Reduce Disability
Claims and the Bottom-Line Impact: Early intervention to recognize and
respond to an employee's needs for workplace modifications from the
first day of hire through the entirety of the employee's tenure helps
mitigate the impact of current and future impairments on their ability
to be a productive worker. Anticipating, identifying and providing
accommodations to new hires such as equipment, assistive technology,
interpreters, and flexible scheduling makes onboarding smooth and the
employee is more-quickly engaged and productive. Proactively responding
to employee's requests for workplace modifications based on their
health concerns, and working together to identify reasonable solutions
and confirming the effectiveness of the accommodation can increase
productivity and often avoids absence and disability through reduction
of their symptoms or impact of their impairment. Modifications may
include equipment, technology, assistive devices or services, flexible
scheduling, and teleworking.
As evidenced in a Mercer study and Towers Watson/National Business
Group on Health study, employers can determine the value of this cost
avoidance by measuring their cost of total disability as a percentage
of payroll against readily available benchmark data.\3\
---------------------------------------------------------------------------
\3\ Towers Watson National Business Group on Health (2012). Staying
at Work Report, 2011-12; and Mercer (2010). Survey on the Total
Financial Impact of Employee Illnesses, 2010.
---------------------------------------------------------------------------
Early Return-to-Work Programs Work: Providing supportive
services (some large employers may have return-to-work coordinators or
case managers) to the employee throughout their absence keeps them
engaged and connected with the organization and provides earlier
opportunities to transition back into the workplace. Large employers
and human resource professionals who engage the qualified, but impaired
employee and the manager in a flexible, interactive process are most
successful with providing effective workplace accommodations. Of
course, this process is fluid and may require additional evaluation and
adjustments, and it means that employers must have the dedicated staff
capable of managing the process. Bringing employees back to work in a
productive capacity where it's medically possible, through provisions
such as light duty work, workplace modifications, flexible work
arrangements, teleworking and procurement of equipment make it less
likely they will transition to long-term disability. For the employer,
the ability to return trained, skilled employees back to the workplace
can avoid recruitment and replacement costs and reduce direct and
indirect costs of absence and disability. Organizations who offer these
programs have to be vigilant to comply with the relevant Federal and
State employment laws.
Success of the Integrated Disability Model (IDM): Going
beyond stay-at-work and return-to-work programs, the integrated
disability model broadens this reach by engaging the best of an
employer's benefits, along with its departments and disciplines to
support and meet an employee's need to remain productive, as well as to
meet the demands of their job. SHRM outlines this integrated model in a
number of its publications and programming it provides to HR
professionals. The model indicates that participating departments may
include HR partners, benefits, health and wellness, safety, risk
management, diversity and philanthropy. Providing a comprehensive
approach to fostering a healthy, inclusive and caring environment that
is responsive to employees' needs can positively affect the employee's
productivity and well-being. Large employers can offer a variety of
support including counseling through work-life balance programs such as
employee assistance programs, wellness programs, ergonomic evaluations,
parental and adoption leave and resources, safety evaluations, job
accommodations, and opportunities to participate in charity work and
diversity groups to enhance the workplace environment.
Employers also need to evaluate trends from health care, disability
and workers' compensation claims to design wellness and workplace
safety programs that provide employees with tools for engagement to
mitigate risk.
Training: Supervisors' and employees' actions toward
others with impairments can have a bearing on whether an organization
is successful in supporting people with disabilities. Employees and
supervisors should be trained in how to respond to employees who raise
concerns about their health and workplace difficulties. They must be
aware of internal resources and how to connect the employee to them.
Workforce diversity training for employees enhances how employees with
impairments are treated in the workplace. Training on proper body
mechanics and proper use of equipment and technology associated with
workplace accommodations will hasten an employee's productivity and
avoid frustrations. Offering sensitivity training to employees for such
things as behavior around service animals, buddy systems and support
for colleagues with disabilities is helpful.
successful strategies for an effective disability management program
Since the U.S. Equal Employment Opportunity Commission promulgated
the final regulations of the ADAAA in March 2011, the expansion of the
definition of disability provides a broad scope of protection to
persons with many types of impairments. In my experience, successful
strategies for an effective disability management program include:
On-site case management/RTW coordinator: This type of
support provides individual assessment and intervention based on
specific impairments through collaboration with the employee,
supervisor, healthcare provider and insurance carriers as appropriate.
Ensure continual followup to support RTW success.
Explore creative alternate jobs or current job
modifications.
Research and deliver appropriate accommodations.
Remain connected to the employee by providing support
throughout their absence and into the RTW process.
Contract with external resources when needed (i.e., a
life skills coach).
Teams that include nurse case manager, return-to-work
coordinator and/or wellness coordinator are better positioned
to manage an integrated disability management program.
Define policies and jobs: Employers must ensure that their
programs have specific written guidelines for transition-back-to-work
programs, light duty and regular duty job descriptions, and formalized
training to new tasks and processes to ensure consistency. Formal
policies such as flexible workplace, teleworking and compressed work-
week provide documentation and oversight for large employers.
Incentivizing work and employee engagement: Large
employers, who continue as reasonable health and welfare benefits, as
well as other programs, such as employee assistance programs and back-
up care, minimize an employee's concerns. Employees may be provided
voluntary continued access to employer resources (such as the intranet
and communications) while on medical leave, if approved by the
healthcare provider. Providing a transitional RTW pecuniary incentive
allowing work to supplement disability benefits for a defined period of
time protects the employee's pre-
disability income while transitioning to work part-time. If the
disability policy does not allow supplemental benefits during a
transition back to work this will negatively impact the willingness of
the employee and the physician to engage in an early return-to-work
program.
Provide creative accommodations: Often it can be a simple
solution such as a keyboard tray to reduce carpal tunnel symptoms that
enhances the employee's ability to perform their job. Some solutions
are complex, may require expert assistance and substantial and
expensive changes to the worksite in order to accommodate the employee.
Accommodations can include defined flexible work schedules, ergonomic
workstations, voice-activated computer systems, lighting adjustments,
specialty equipment, technology, mobility devices or relocating the
work within reach.
Accommodation challenges can occur based on the nature of the work.
Organizations employing white collar workers have more opportunity to
offer light duty and workplace accommodations to employees with
disabilities, as they typically have less physically demanding job
functions that need to be addressed. Organizations with a workforce
consisting of mostly blue collar workers tend to have limited
availability for light duty positions and a greater challenge when
providing accommodations that address the employee's ability to perform
physically challenging job requirements.
Establish workplace flexibility strategy: By providing
workplace flexibility policies and programs, employers can help all
employees better meet their work-life needs. Workplace flexibility
policies, such as flexible scheduling and telecommuting, can help
employees with disabilities perform their job functions.
SHRM has engaged in a significant effort to educate HR
professionals and their organizations about the importance of effective
and flexible workplaces. On February 1, 2011, SHRM formed a multi-year
partnership with the Families and Work Institute (FWI). This
partnership combines the research and expertise of a widely respected
think tank specializing in workplace effectiveness with the influence
and reach of the world's largest association devoted to human resource
management. By highlighting strategies that enable people to do their
best work, the partnership promotes practical, research-based knowledge
that helps employers voluntarily create effective and flexible
workplaces that fit the 21st century workforce and ensure a new
competitive advantage for businesses. Although FWI is an independent
non-
advocacy organization that does not take positions on these matters,
and the position of SHRM should not be considered reflective of any
position or opinion of FWI, I'd like to briefly mention one of the key
elements of the SHRM/FWI partnership, the When Work Works program,
because it seeks to educate and showcase employers who are meeting the
needs of our 21st century workforce. The centerpiece of the initiative
has been the Alfred P. Sloan Award for Excellence in Workplace
Effectiveness and Flexibility, a nationally recognized award for
organizations that are using workplace flexibility as part of their
business practice.
When Work Works is a nationwide initiative to bring research on
workplace effectiveness and flexibility into community and business
practice. Since its inception in 2005, When Work Works has partnered
with an ever-expanding cohort of communities from around the country
to:
1. Share rigorous research and employer best practices on workplace
effectiveness and flexibility.
2. Recognize exemplary employers through the Sloan Award for
Excellence in Workplace Effectiveness and Flexibility.
3. Inspire positive change so that increasing numbers of employers
understand how flexibility can benefit both business and employees, and
use it as a tool to create more effective workplaces.
Comprehensive Wellness Programs: Employers can provide
comprehensive wellness programs to support employees in maintaining or
improving their health. On-site fitness and pedometer programs, weight
management programs, smoking cessation programs, health screenings,
health coaching and CPR training are just a few initiatives that
enhance team building and overall health.
Consider an employee who is diagnosed with a neurologically
degenerating disease such as Parkinson's disease. A marketing and sales
company was able to bring this employee, who was a data analyst, back
to work following a few weeks of total disability by providing a
scooter and a larger monitor for visual deficits. As the employee's
disease progressed and he experienced hand tremors and slurred speech,
he requested that he continue to work and additional accommodations
were provided to include a special keyboard and writing tools. The
employee was able to successfully continue to work for 6\1/2\ years,
before he was no longer able to perform the essential functions of the
job. Had this employee worked as a back hoe operator for a construction
company, the only light duty work the employer may have been able to
provide was a traffic flagger, which would have required standing on
the street. The employee's impairment would have precluded him from
this and he would have remained on total disability.
large employer challenges
As I noted earlier in my testimony, there are several legal and
regulatory challenges that an employer must navigate in offering a
disability management program. These primary challenges include the
following:
Impact of Individual State Benefits: There is an
administrative burden on employers who have employees that work in
multiple States with paid disability and family leave benefits in terms
of increased communications, tracking and the potential overlap in
benefits and conflicts between Federal and State law. Human resource
professionals must have a general understanding of the various State
disability benefits and ensure their employees are informed of the
process for applying for these benefits. If the employer has private
disability insurance, the employees should be informed of the process
if State benefits will offset the employer's disability benefits.
Employers have the added responsibility of completing paperwork for
both the State and private disability carrier, and coordination of a
partial return-to-work requires collaboration between all stakeholders.
Navigating the bureaucratic requirements can be confusing to an
employee; they will look to the employer for guidance and
understanding.
In addition, for State-paid family leave benefits, employers must
inform employees of their rights as well as the process for applying
for benefits. For example, if an employer employs both a husband and
wife, both may be entitled to paid benefits for the same event. In this
case, the employee with the disability would be eligible for State
disability and the spouse may be eligible for paid family leave. In
some cases, ongoing reports of need for paid family leave will be
required from the spouse.
FMLA and ADA: Intermittent FMLA continues to pose
administrative challenges for large employers in terms of being able to
ensure appropriate staffing to meet the needs of the business on a day-
to-day basis and ensure they have the current information and updates
to provide the appropriate approvals. Other employees may request
similar workplace equipment and modifications, unaware that an
accommodation for a disability was made. For those on light duty,
concerns arise surrounding the impact the employee's future FMLA leave
may have on staffing needs and how the organization can manage its work
requirements in the long term. Extension of leave beyond FMLA
requirements, protected by the ADA, may involve a prolonged absence.
As employers navigate the many laws that govern the employment of
people with disabilities, there is much to understand and many
resources to explore. Employers who have been successful in providing
early RTW programs and workplace accommodations have been able to
improve their bottom line while helping their employees. Employers
would benefit from increased education on successful models for RTW
strategies and information-sharing with regard to resources for
managing workplace accommodations.
conclusion
Again, I thank the committee for listening to my perspective on
employer opportunities and challenges in return-to-work strategies for
employees with disabilities.
I am happy to answer any questions you may have.
The Chairman. Thank you very much, Miss Amato.
And now we turn to Christine Walters. Welcome, and please
proceed.
STATEMENT OF CHRISTINE V. WALTERS, M.A.S., J.D., S.P.H.R., SOLE
PROPRIETOR, FIVEL COMPANY, WESTMINSTER, MD
Ms. Walters. Thank you, Chairman Harkin.
And thank you, in their absence, to the other members of
the committee, and Ranking Member Enzi.
I am Christine Walters. Like Karen Amato, I am before you
today as a member of SHRM, Society for Human Resource
Management. Thank you, also, for your introduction. I do have
about 25 years combined experience in employment law practice,
HR administration, management, and teaching, and practice today
as an independent HR and employment law consultant,
predominantly with small business. And it is from that
perspective that I will share with you this morning my
experience in the private sector predominantly small
businesses, their experiences and challenges regarding stay-at-
work and return-to-work, or RTW, strategies.
Life for a small business owner is very hectic and
navigating the maze of laws with limited resources and
sometimes limited personnel can be overwhelming. What is more,
smaller employers often have no in-house HR professional. If
they do have a person who is in charge of HR administration,
that person also often has two or three other jobs, perhaps
payroll administrator or office manager. In my experience, the
myriad of Federal and State laws comprise the primary challenge
that small employers face when trying to hire and retain
individuals with disabilities.
To give you a quick sense of the complexity, the ADA, the
FMLA, and State worker's comp laws are sometimes affectionately
known as ``the Bermuda Triangle'' of HR. Despite their merits,
these statutes are complex, they are overlapping, and they are
sometimes frustrating for small employers to administer
particularly those trying to proactively administer an RTW
strategy.
First with regard to the ADA, in light of the enactments of
the ADA Amendments Act, the key focus, as we know now, is on
whether discrimination has occurred, not on whether the
individual has a disability. I hear sometimes that shift in
focus may make RTW programs difficult to sell to small
business. They may feel that under this new analysis, maybe it
is safer to do less for all, than more for some.
Under the FMLA, there are several challenges. One example
is that the time an employee spends performing light duty does
not count toward FMLA leave, leaving that employee's full 12-
week entitlement fully intact. Also, that same employee must be
paid his or her regular wages while working light duty. That
can create some employee relations challenges when that person
works alongside other employees who are paid less, while
performing the same work.
State workers' compensation laws are also complex, but
there are some nice opportunities to partner with worker's comp
carriers to assess methods for balancing RTW strategies with
gainful employment, and also overseeing overall fiscal
responsibility.
Then finally, there is the Fair Labor Standards Act, of
course, FLSA and State wage and hour law considerations when
implementing flexible work arrangements; three very quick
examples.
Under the FLSA, of course, employers are permitted to allow
a nonexempt employee, for example, to work four 10-hour days in
a compressed workweek without the employer--as long as they do
not go over 40--to incur any overtime obligations. However,
under California law, for example, if an employee works more
than 8 hours in a day, that employer would have to pay
overtime.
Or another example, take a healthcare technician who wants
a flexible work schedule to accommodate his or her own
disability, or to care for a person with whom he associates who
has a disability, working maybe 45 hours the first week and 35
hours the second week in the same payroll period. The FLSA,
again, would require that employer to pay overtime for the
hours over 40 in that first workweek. And then if the employer
could find a job sharing arrangement whereby a coworker might
work those first 5 hours or the 5 hours over 40 in that first
workweek, that might violate State law. We currently have at
least 14 States that prohibit mandatory overtime for certain
professionals in certain industries, including the healthcare
industry.
As Congress, Federal, and State regulatory agencies
consider proposals to support the employment, the retention,
and the advancement of persons with disabilities, we
respectfully suggest that we focus our distinction or focus our
concentration on carrots rather than sticks. And that is to
say: let us focus on employer incentives rather than mandates.
Let us entice employers to engage in proactive measures to
recruit, hire, retain, train, and advance individuals in their
workplaces and persons with disabilities. Small employers can
secure rewards, be they tax incentives or safe harbors to
enhance and encourage those activities.
I thank you so much for calling today's hearing, listening
to my comments, and I, as well, remain open for questions.
Thank you.
[The prepared statement of Ms. Walters follows:]
Prepared Statement of Christine V. Walters, M.A.S, J.D., S.P.H.R.
introduction
Chairman Harkin, Ranking Member Enzi, and distinguished members of
the committee, my name is Christine Walters. Thank you for the
invitation to appear before the committee to share private sector
lessons, experiences and challenges regarding disability management
practices.
By way of introduction, I have 25 years of combined experience in
human resources administration, management, employment law practice and
teaching. Today I am an independent human resources and employment law
consultant with the FiveL Company in Westminster, MD. I have served as
an adjunct faculty member of the Johns Hopkins University, teaching a
variety of courses in graduate-, undergraduate- and certification-level
programs from 1999 to 2006 in human resource management topics. I am
pleased to say that my first book, From Hello to Goodbye: Proactive
Tips for Maintaining Positive Employee Relations, was published in
March 2011 and was the publisher's #4 best seller last year.
I appear today on behalf of the Society for Human Resource
Management (SHRM). SHRM is the world's largest association devoted to
human resource management. Representing more than 260,000 members in
over 140 countries, the Society serves the needs of HR professionals
and advances the interests of the HR profession. Founded in 1948, SHRM
has more than 575 affiliated chapters within the United States and
subsidiary offices in China and India. On behalf of SHRM and its
members, I thank you for this opportunity to appear before the
committee to share return-to-work strategies and other disability
management practices in the 21st century workplace. My testimony will
rely heavily on my experience working with small businesses.
how employers can leverage return-to-work strategies
What is a return-to-work (RTW) strategy? Also referred to as
disability management, the U.S. Government Accountability Office (GAO)
defines an RTW strategy as a ``proactive approach to controlling
disability costs while helping disabled employees return to work.'' \1\
RTW programs and strategies have been the subject of national and
international research and literature for decades. As examples:
---------------------------------------------------------------------------
\1\ U.S. Government Accountability Office, Health, Education and
Human Services Division (1996). Return-to-Work Strategies From Other
Systems May Improve Federal Programs. http://www.gao.gov/assets/160/
155504.pdf.
In 1998, the International Labour Organisation's
International Research Project on Job Retention and Return to Work
Strategies for Disabled Workers (IRP) examined the inter-relationships
of public and enterprise policies and practices as they affect the
retention and return to work of disabled workers in eight countries:
Canada, France, Germany, the Netherlands, New Zealand, Sweden, the
United Kingdom and the United States.\2\
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\2\ Thornton P (1998) International Research Project on Job
Retention and Return to Work Strategies for Disabled Workers--Key
Issues, International Labour Organisation.
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A 2001 IRP report addressed a major six-country study on
work incapacity and reintegration (the WIR project) undertaken in the
mid-1990s under the auspices of the International Social Security
Association. The Project drew on data compiled in six longitudinal
studies in Denmark, Germany, Israel, the Netherlands, Sweden and the
United States.\3\
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\3\ Bloch, F., and Prins, R. (2001). Who Returns to Work and Why?
International Social Security Series, Volume 5, Transaction Publishers.
USA, UK.
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A 2002 IRP report on a qualitative study of return to work
in small workplaces, particularly its sociological dimensions. The
study examined the strategy of Early and Safe Return to Work (ESRTW)
used in Ontario--an approach that emphasized workplace self-reliance
and early return to work before full recovery in modified jobs.\4\
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\4\ Eakin, J.M., Clarke, J., and MacEachen, E. (2002). Return to
Work in Small Workplaces: Sociological Perspective on Workplace
Experience with Ontario's ``Early and Safe'' Strategy, University of
Toronto/Institute for Work and Health Study, Canada.
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Also in 2002, IRP published a literature review that
considered the matters of work preparation and vocational
rehabilitation. The review focused mainly on the development of
vocational rehabilitation in the United Kingdom, but also considered
approaches to vocational rehabilitation drawing on international
literature.\5\
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\5\ Riddell, S. (2002). Work Preparation and Vocational
Rehabilitation: A Literature Review, Strathclyde Centre for Disability
Research, University of Glasgow.
In 1996, the GAO Health, Education, and Human Services Division
published a report for the Chairman of the U.S. Senate Special
Committee on Aging to respond to an inquiry regarding key private-
sector practices used to return disabled workers to the workplace. The
report also included examples of how foreign employers implement RTW
strategies for persons with disabilities. The report found that other
countries had implemented RTW strategies that were similar to those in
the U.S. private sector. Although the study was published in 1996, its
findings are still remarkably applicable today.
The GAO study found three common elements to successful RTW
strategies including in the private sector in the United States,
Germany and Sweden:
1. Early intervention--The GAO reported that 50 percent of
employees who go out on disability leave for 5 or more months will
never return to work.
Know your RTW metrics. A successful program is dependent
upon buy-in and support from all levels of the organization. Define
your company's goals. Know your baseline measures. What are your
average days-lost-from-work, average absence rate, on-the-job injury/
illness incident report? What are the trends, e.g., are they
increasing/decreasing? How do they compare to your market by industry,
geography and size? How will you measure success of your RTW program? I
applaud SHRM's efforts to standardize employment metrics and its active
engagement with ANSI toward new ISO initiatives.\6\
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\6\ Society for Human Resource Management (2011). Press release.
ISO Approves U.S. Proposal for International Standards on Human
Resource Management, March 3, 2011. http://www.shrm.org/about/
pressroom/PressReleases/Pages/ISOApprovesUSProposal.aspx.
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Stay in contact with employees out on leave; help them
feel still connected to the job.
2. Case management--Provide RTW assistance and manage cases to
achieve goals. RTW requires an individualized approach, and may not
always mean that an employee returns to the same job.
3. Providing RTW incentives----
Retain employer-sponsored medical benefits, which serve as
an incentive to return to work.
The GAO report states that if disability benefits are too
generous they can serve as a disincentive to return to work.
But incentives alone are not enough; they must be
incorporated into RTW practices such as including a contractual
requirement for cooperation with a RTW plan as a condition of
eligibility.
One-size-does-not-fit-all. How any given employer provides creative
alternatives to work schedules and duties is very much driven by the
industry and size of the employer. But even small business employers
are becoming more learned and creative in finding ways to keep
employees with disabilities gainfully employed. Just some of these
flexible staffing models include:
Flex time--permitting employees to work flexible schedules
around a ``core'' set of hours.
Alternative work schedules (AWS)--alternate work schedules
such as 4/10 workweeks.
Job sharing--where two employees may share the duties and
work schedule of one FTE.
Teleworking--permitting employees to work from home or an
alternate location.
key issues for small business
Life for a small business owner is hectic, and navigating the maze
of laws with limited resources and personnel can be overwhelming.
Smaller employers often have no in-house HR professional. If they have
someone who is responsible for HR, that individual also probably
handles two or three other job functions (for example, the HR manager
may also be the payroll administrator and office manager).
In my experience, here are some of the primary disability
management issues faced by smaller sized employers:
Myriad Federal and State laws--Despite their merits, the ADA, FMLA
and workers' compensation laws are referred to as ``the Bermuda
Triangle of HR.'' They are particularly complex, overlapping and
frustrating for small employers to administer--particularly for
employers administering an RTW strategy. Those three and other statutes
are discussed here:
ADA--In light of the enactment of the ADA Amendments Act
of 2008, the key point to focus on now is whether discrimination
occurred, not whether an individual has a disability. This shift in
focus may make RTW programs more difficult to ``sell'' to small
business. Some employers may feel under the new analysis that it may be
safer to do less for all than more for some.
FMLA--Under the FMLA, providing same pay during light duty
creates tension among co-workers. Time spent working light duty does
not count toward FMLA leave. Reduced schedule leave = infinite FMLA
leave (never exhaust 480 hours). Employee retains protected right to
decline offer of light duty work, while employee out on non-FMLA
medical leave has no such protected right.
Workers' compensation (WC)--There are opportunities to
partner with WC carriers to assess methods for balancing RTW, gainful
employment and fiscal responsibility. As mentioned above with regard to
FMLA rights, an employee has a right under FMLA to decline an offer of
light duty work. Declining the opportunity to work light duty may,
however disrupt or stop the employee's receipt of continued benefits.
This strategy is similar to that described in the GAO reported
referenced earlier in my remarks, e.g., a purpose of the study was to
assess ways to reduce increasing DI costs paid by government agencies.
FLSA and State wage and hour laws--Flexible staffing
models such as AWS that include a 10-hour-a-day, 4-day workweek known
as a 4-10 workweek must be implemented with consideration to Federal
and State wage and hour laws. Employers may find they inadvertently
create increased labor costs when such models result in overtime that
was not budgeted for nor anticipated or that violates State wage and
hour laws that mandate overtime for hours worked in a day (such as in
California) or in one of at least 14 States that limit or restrict
mandatory overtime for certain professionals.
Covered Federal (sub)contractors and Executive Order
11246--For many small employers, it is good news and bad news when they
are awarded a government contract or subcontract and exceed the 50-
employee threshold for the first time. On one hand, they are very
excited about their success. On the other hand, they are also sometimes
overwhelmed at the task ahead of them. Such contractors will quickly
recruit qualified candidates in numbers greater than ever before to
support the new contract. Then, I find more often than not they are
stunned to learn about their obligations to now not only draft written
affirmative action plans (Plans) but to administer those Plans and
maintain all the corresponding documentation. With regard to the
recruitment, selection, hiring, training and other employment
activities related to persons with disabilities covered contractors
currently must:
Annotate the application or personnel form of each
covered individual to identify each vacancy for which the
applicant was considered. Such annotation shall include: (i)
the identification of each promotion for which the covered
employee was considered, and (ii) the identification of each
training program for which the covered individual was
considered.
Where an employee or applicant is rejected for
employment, promotion, or training, a statement of the reason
as well as a description of the accommodations considered,
where applicable.
Where a covered applicant or employee is selected for
hire, promotion, or training and the employer undertakes any
accommodation that makes it possible to place the covered
individual on the job, the application form or personnel record
will contain a description of that accommodation.
Review physical and mental job qualifications upon
the development of any new position, update existing positions
or position descriptions and recommend and implement any
necessary changes. Such review shall take place on an on-going
and as-needed basis and no less than once each year upon update
of the Plan.
When a qualified candidate is referred or selected
from Federal, State or local agencies or other resources
identified in the employer's Plan, formal arrangements must be
made with the respective agency for the referral of the
applicant, followup and feedback on the disposition of
applicant.
Track and monitor all personnel activity, including
referrals, placements, transfers, promotions, terminations and
compensation at all levels.
Provide training to all personnel involved in the
recruitment, screening, selection, promotion, corrective action
and other processes related to the employment of persons with
disabilities and the commitments of the Plan.
Early intervention--Small business owners often do not have the
same internal resources that larger employers have. Put another way,
many small businesses know enough to know what they don't know about
their legal liability. Without an in-house HR advisor and in an attempt
to defer the expense of consulting external legal counsel, they may
feel that silence and inaction are safer than saying or doing the wrong
thing.
Case management--Small business owners have limited fiscal and
staffing resources. Thus, where larger employers may seek second and
third opinions on legal issues, a small business may be more likely to
bypass these options for cost reasons. With regard to the strategies
described above, small business' most frequent concern as I hear it
expressed is lack of funding and/or expertise to implement the
recommended case management strategies. Small business owners do not
have case managers and often have little idea where to look or whom to
ask to find one.
Providing RTW incentives--Most small businesses offer some form of
paid leave program whether it is in the form of traditional vacation
and sick leave or a combined ``bank'' of paid leave referred to by
various names such as paid time off (PTO), paid leave days (PLD) or
some other term. More and more laws are being passed, predominantly at
the State level, that prohibit employers from requiring employees to
use the benefit of paid leave for such activities as jury duty, leave
to care for a family member, leave due to one's own serious health
condition, leave as the result of being the victim of a crime, leave
for service in the Uniformed Services, leave that runs concurrent with
a State disability program, and/or that bar employers from maintaining
use-it-or-lose-it paid leave policies. While I understand the intent of
such legislation, the practical impact to small business is that their
accounts payable liability is reduced at a rate lower or slower than
anticipated. That fiscal impact, since most employers pay out at least
some portion of accrued, unused paid leave at termination, may result
in small business reducing the amount of annual leave it provides to
employees.
Setting precedent--The concern I hear most frequently from
employers who may be less familiar with RTW strategies is about setting
precedent. Employers aim to be fair and consistent with employees, but
they may ask ``If I do `x' in this case, won't I have to do the same
for everyone?''
Self-fulfilling defeat of essential functions--one court held that
when an employer accommodated an employee by permitting the employee to
not perform an essential function of the job for some period of time
and subsequently determined it could not continue to provide that
accommodation, the employer had created its own defeating, self-
fulfilling prophecy. The court held that if the employer was able to
permit the employee to not perform that function for some period of
time, it must be non-essential.
shrm's work to promote disability employment
All of us share a sense of duty to give back to those who serve our
country. I find so much enthusiasm and passion from employers to
recruit and retain veterans and those who are currently engaged in the
armed forces and reserves. As employers become engaged in those
processes, they may receive their first exposure to providing
reasonable accommodation for an employee or applicant with a
disability. Through those experiences I find concerns I have described
above about setting precedent or creating an argument that will be used
against you subsides.
To boost veterans' employment and help organizations meet the
Nation's skills gap, SHRM is working with two organizations to help
employers recruit and retain current and former members of the
military, many of whom return home with
service-related disabilities.
The Employer Support of the Guard and Reserve (ESGR) is a
Department of Defense organization that promotes cooperation and
understanding between Reserve component members and their civilian
employers and assistance in the resolution of conflicts arising from an
employee's military commitment. SHRM signed a statement of support for
ESGR and the more than 1.2 million citizens from all walks of life who
have volunteered to serve during two long and difficult wars. In
addition, the U.S. Department of Labor's Veterans' Employment and
Training Service (VETS) provides resources to assist veterans and
service members to boost their employment opportunities. Both of these
organizations can help HR professionals and employers find, hire and
retain skilled military service members.\7\ We have much to learn about
the experiences, perceptions, perspectives, needs and desires of our
veterans, returning military and reservists. That broadened perspective
can only enhance our understanding of overlapping, similar and
different needs with regard to the employment and continued employment
opportunities for persons with disabilities.
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\7\ Society for Human Resource Management (2012). Military
Employment Resource Page. http://www.shrm.org/hrdisciplines/
staffingmanagement/Articles/Pages/Military.aspx.
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the sloan award for excellence in workplace effectiveness and
flexibility
I also applaud SHRM's new initiative ``When Work Works.'' The Sloan
Awards are a signature piece of that initiative within the SHRM/
Families and Work Institute partnership, which aims to educate
employers about the benefits of workplace flexibility and to recognize
best practices. In 2011, hundreds of organizations applied for the
Sloan Award for Excellence in Workplace Effectiveness and Flexibility,
resulting in 450 winning worksites! Since 2005, the Sloan Awards have
been recognizing model employers of all types and sizes across the
United States for their innovative and effective workplace practices.
For more information, you may go to http://whenworkworks.org/.
resources
I believe a key to continued enhancement in the employment,
retention and advancement of persons with disabilities is education and
resources for small business. I find the following to be just a few
examples and opportunities:
U.S. Department of Labor's Office of Disability Employment
Policy's RTW Toolkit (for more information, see link below) \8\
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\8\ http://www.dol.gov/odep/pubs/20100727.pdf.
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OSHA's Small Business Handbook \9\
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\9\ http://www.osha.gov/Publications/smallbusiness/small-
business.pdf.
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Federal and State agency (free) public technical
assistance seminars.
Physician and employer partnerships and education.
Corporate wellness programs and legal parity (GINA, HIPAA,
ADA challenges with compliance).
Sample, model RTW programs--NY State Insurance Fund \10\
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\10\ http://ww3.nysif.com/SafetyRiskManagement/RiskManagement/
LimitingLiability/ReturnToWorkPrograms.aspx.
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State and local ``green'' tax credits for AWS programs.
carrots versus sticks
Over the last year, I have seen a plethora of regulatory activity
at the Federal and State level that is impacting employment practices.
Add to that employment-related Federal and State legislation. As
Congress, Federal and State regulatory agencies consider proposals to
support the employment, retention and advancement of persons with
disabilities, I respectfully suggest we focus our discussion on carrots
rather than sticks. That is, applying the same philosophy as shared by
the GAO to Congress in 1996 let us focus on incentives to entice
employers to engage in proactive measures to recruit, hire, retain,
train and advance in their individual workplaces persons with
disabilities. Let us focus on rewards for engaging in such activities,
be they tax incentives, safe harbors or recognition programs. Let us
maintain that focus rather than shifting to discussions of mandates and
adverse consequences if those mandates are not met.
These are exciting times and through joint efforts and initiatives
between Congress, regulatory agencies, small and large business,
physicians, employees and applicants, I believe we can continue to
enhance the employment and continued employment opportunities of all
persons including those with disabilities.
closing
Thank you again for the opportunity to appear before the committee
to share these experiences and challenges from the small business
perspective regarding disability management practices.
I welcome your questions.
The Chairman. Thank you, Miss Walters.
And now, we turn to Eric Buehlmann. Eric, Mr. Buehlmann,
welcome. Please proceed.
STATEMENT OF ERIC BUEHLMANN, J.D., ARLINGTON, VA
Mr. Buehlmann. Chairman Harkin, Ranking Member Enzi, and
other members of the HELP Committee, I appreciate the
opportunity to add my personal perspective today to the
discussion of an acquired disability in returning to work.
My story begins in January 1993. I was a 24-year-old and in
my last semester of law school. In addition, I was working
part-time as a staff assistant for Senator James Jeffords. It
was also the month that I had a brain hemorrhage. As I slowly
became aware of my surroundings at Georgetown University
Hospital, the effects of the brain hemorrhage became apparent.
I was paralyzed on the left side of my body. I was unable
to see anything from my nose left. I was unable to focus both
my eyes on the same point, which made it very hard to read. It
was very difficult for me to sustain my focus for any length of
time without becoming overly tired, and at times, it was very
difficult to find the words to express my thoughts and ideas.
After 3 weeks at Georgetown University Hospital, I
transferred to the National Rehabilitation Hospital to begin
more intensive inpatient therapy. While there, I did physical,
occupational, speech, and vocational therapies. I also had
individual sessions with a neuropsychologist who helped me
understand the effects of my brain hemorrhage. I also had group
sessions with others that had experienced a traumatic brain
injury. I found these individual and group sessions extremely
helpful.
During this time at NRH, Senator Jeffords came for a visit
and we talked about work. While it was unclear if or when I
would be able to return, he stated that they were looking into
accommodations to help me return. As I was not walking at that
point, one of the issues was wheelchair accessibility of the
office. Throughout my stay at NRH, Senator Jeffords' office had
several discussions with my therapist about accommodations.
After a little more than 2 months at NRH, I left much
improved. While I continued to do outpatient therapy, my focus
shifted from if I would return to work and school, to how best
to accomplish these goals.
In July 1993, I started back to work at Senator Jeffords'
office. With the help of the therapist at NRH, my workplace was
designed to address my visual issues, and with the
understanding of Senator Jeffords' office, I started with a few
hours a day and then built back up to the amount I was working
before the hemorrhage. By August, I was there.
I restarted my law school classes at American University in
January 1994 with an accommodation of time and a half for any
test I took in class. I ultimately graduated in January 1995,
and then took the bar exam in Maryland in February with the
same time and a half accommodation. Needless to say, I was
beyond pleased to pass on the first try.
Following the bar exam, I began to work for Senator
Jeffords in a full-time capacity. I started as a legislative
correspondent and became his legislative counsel in 1996. I was
also privileged to be Senator Jeffords' acting legislative
director in 2006.
Even though I was now putting in the long hours required of
a legislative counsel, it was still important for me to
continue to follow the strategies and techniques I had learned
from the therapist at NRH.
I stayed with Senator Jeffords up until his retirement from
the Senate in January 2007, and then began the job hunt
process. This raised a completely new set of questions for me
to consider including how much I should disclose about my
disability and past medical history.
As my disability is not readily obvious, I did not always
disclose it in an interview. There were plenty of interviews
where I never discussed this topic, and I have sometimes
wondered if decisions about me were made about some
manifestation of my disability rather than my actual skills.
The brain hemorrhage was a part of my life, an important
component of who I am today, but I was concerned about the
stigma attached to medical issues and disability. In many ways,
I wish I had felt free to discuss the topic.
My current employer, the National Disability Rights
Network, is a membership organization for agencies that provide
legal advocacy for people with disabilities, and I had no
qualms about disclosing my brain hemorrhage and its effects up
front. I felt comfortable that I would be judged on my
qualifications rather than my disability.
It has been my pleasure to work the last 5 years at NDRN
and progress to my current position as deputy executive
director for Public Policy. Working at NDRN and with the
nationwide network of protection and advocacy agencies we
represent has strengthened my belief that our country is better
when we include people from all backgrounds including those
with disabilities. While employing a person with a disability
may require an accommodation, I believe the benefits far
outweigh any costs.
January 2013 will be the 20th anniversary of my brain
hemorrhage. Testifying today has given me an opportunity to
reflect on what enabled me to successfully return to work.
First, a high level of family, friend, and coworker support
was instrumental in my recovery.
Second, the ability to have over 2 months of good inpatient
therapy was critically important.
Third, my desire to return to work along with Senator
Jeffords' willingness to work with my therapist to make the
accommodations necessary for me to return also made a
difference. Fortunately, I was lucky to have all of those
things in place, but many people who experience an acquired
disability are not this lucky.
I was reading to my son the other night from a ``Magic Tree
House,'' book and there was a discussion of Alexander Graham
Bell, and I thought a statement he had was pretty interesting.
Basically, he always believed that when one door closed,
another door opened and we spend a lot of time focused on the
closed door. And I sort of feel like, in some respects, that
people with disabilities sort of face that as they look--the
closed door is that they look at just the disability and they
sort of do not see the open doors, and the abilities, and the
changes we can make to sort of move forward with a person with
a disability in employment.
As everybody else, I look forward to the opportunity to
answer any questions anyone may have.
[The prepared statement of Mr. Buehlmann follows:]
Prepared Statement of Eric Buehlmann, J.D.
Good morning Chairman Harkin, Ranking Member Enzi, and other
members of the Health, Education, Labor, and Pensions Committee. I
appreciate the opportunity to provide my personal perspective today on
stay-at-work and back-to-work strategies.
My story begins in January 1993. I was 24 years old and in my last
semester of law school. In addition, I was working part-time as a Staff
Assistant for Senator James Jeffords. During a pick-up game of
basketball, I took a hit to the side and suffered a bad bruise. I
noticed that after a few days, the bruise was not healing and I went to
a doctor. They ran some tests, and I went to my law school classes as
normal. When I returned to my apartment that afternoon, there was a
message telling me to come to the hospital right away. They needed to
see me.
When I arrived at the hospital, they informed me that my platelet
count, which normally should be 300,000-350,000, was only 3,000. This
meant that my blood was having problems clotting. They ran another
series of tests and ultimately diagnosed me with Idiopathic
Thrombocytopenic Purpura (ITP). Basically, this means my spleen thought
my platelets were bad, and removed them as fast as my bone marrow could
produce them.
Treatment for ITP is done more on an outpatient basis, so the
hospital released me and I resumed my law school classes and work in
Senator Jeffords' office. I was informed of some warning signs that
would indicate that I would need to come back immediately to the
hospital, but honestly being 24 years old, I didn't think much about
that. Unfortunately, very shortly after my release I experienced the
warning signs. I called my roommate and he rushed home to take me to
the hospital. His key unlocking the door to our apartment is the last
thing I remember for the next 2 weeks of my life.
Later I was told, that by the time we arrived at Georgetown
Hospital, I was complaining of being blind and I was unable to walk or
stand up without assistance. I was placed into an MRI, to get a picture
of the inside of my head, and was pulled out half way through the
process because of the severity of the cranial bleeding. Hospital
personnel immediately rushed me to surgery where a craniotomy was
performed to relieve the pressure on my brain and try to stop the
bleeding. The neurosurgeon removed part of the right occipital lobe of
my brain during this surgery. There was still a concern that the ITP
and the resulting low platelet count was going to lead to more bleeds,
so it was decided to do a splenectomy. The doctors hoped that removing
my spleen would raise the level of platelets in my blood. The
splenectomy worked. My platelet count ultimately stabilized at an
acceptable level.
As I slowly became aware of my surroundings, the effects of the
brain hemorrhage began to become apparent to me. First, I was paralyzed
on the left side of my body. Second, my field of vision had been
reduced and I was seeing nothing from my nose left as well as having
trouble focusing to read. Third, it was difficult for me to sustain my
focus for any length of time without becoming overly tired, and it was
also difficult at times for me to articulate thoughts and ideas.
This was definitely a down time in my recovery as I was becoming
exceedingly bored spending my days in bed, doing very little other than
watching television and sleeping. This all changed the day the
therapists at Georgetown came and began to start a course of therapy.
Therapy gave me something to do, something to work on, and added
interaction with people.
After 3 weeks at Georgetown University hospital, I was transferred
to the National Rehabilitation Hospital (NRH) to begin more intensive
in-patient therapy. While there I did physical, occupational, speech,
and vocational therapies. I also had individual sessions with a
neuropsychologist who helped explain what the effects of the brain
hemorrhage were. I also had group sessions with others that had
experienced a traumatic brain injury. I found these individual and
group sessions extremely helpful in understanding what had happened to
me, and in letting me know that others were struggling with the same
issues I was struggling with every day.
During this time at NRH, Senator Jeffords came for a visit and we
talked about work. While it was unclear if, or when, I would be able to
return, he stated that they were looking into accommodations to help
with my return. As I wasn't yet walking at that point, one of the
issues they looked into was spacing between the cubicles and making the
office wheelchair accessible. Throughout my stay at NRH, Senator
Jeffords' office had discussions with my therapists about
accommodations necessary for my desk space, and the best way to bring
me back in terms of the length of the workday.
After a little more than 2 months at NRH, I left in different shape
than I had entered. I was walking at that point; better able to
articulate my thoughts and ideas; had a higher and longer level of
attention; and could get my eyes to focus together which allowed me to
read again. Some effects of the brain hemorrhage still existed, like
the reduction of my field of vision, I would get tired and neglectful
sooner than before, and I continued to have some difficulty with word
retrieval at times. However, the therapists at NRH had taught me a lot
of strategies and techniques to help me compensate.
I continued to do outpatient therapy at that point for a couple
more months, but my focus shifted from if I would return to work and
school, to how to best accomplish these goals. I had discussions of my
situation with both Senator Jeffords' office and the American
University School of Law, and settled on a plan to restart work first
with a smaller set of hours per week, but building them up to the
amount I was previously working over the course of a couple weeks. As
for school, I would restart in January 1994 and complete the last
semester of law school over the course of the year.
So, in July 1993, roughly 6 months after my hemorrhage, I started
back to work in Senator Jeffords' office. With the help of the
therapists at NRH, my workspace was designed to best address my visual
issues, and with the understanding of Senator Jeffords' office I
started with a few hours a day and then built back up to the amount I
was working before the brain hemorrhage.
It was important for me to listen to my body and understand when I
needed to take a break or I was going to become over tired. I could not
spend hour after hour looking at a computer screen or reading every
day. I also needed to plan my travel schedule much more as I was not
able to drive. Finally, I needed to position myself properly in
meetings to ensure that I was not missing anything, and that I was able
to appropriately interact with everyone. By August, I was back to my
previous workload, thanks to the work of my therapists, the support of
my family and friends, and willingness of Senator Jeffords to provide
accommodations.
As I mentioned earlier, I restarted my law school classes at
American University in January 1994 with the understanding that I would
complete the last semester of work over the course of the year. I also
received an accommodation for time and a half for any test I took in
class. With these accommodations, I was able to complete law school and
graduated in January 1995. I then took the bar exam in Maryland with
the same time and a half accommodation in February and was beyond
pleased to pass it on the first try.
Following the bar exam, I began to work for Senator Jeffords in a
full-time capacity. I started as a legislative correspondent in 1995
and became his legislative counsel in 1996. Even though I was now
putting in the long hours required of a legislative counsel, it was
still important for me to continue to follow the strategies and
techniques I had learned from the therapists at NRH. I still needed to
listen to my body and take breaks from just sitting in front of the
computer or reading all day and I needed to position myself well in
meetings so I did not miss anything that was occurring.
During my time with Senator Jeffords as his legislative counsel, I
handled a variety of issues, including: Federal employees; banking,
housing and insurance; labor law; judiciary-related issues, including
abortion and gun control, and campaign and election law, including the
enactment in 2002 of the Snowe-Jeffords provisions on electioneering
communications. I was also privileged to be Senator Jeffords acting
legislative director in 2006.
I stayed with Senator Jeffords up until his retirement from the
Senate in January 2007, and then began the job hunt process for the
first time since I had suffered my brain hemorrhage. This raised a
completely new set of questions for me to consider, including how much
I should disclose about my disability and past medical history. This
was a struggle for me.
As my disability is not readily obvious to the casual observer, I
did not always disclose my past medical history in an interview. A lot
depended on my comfort level with the organization I was interviewing
with and the questions that were asked. There were times that I was
asked about the most difficult situation I had to overcome, and if I
felt comfortable, I would discuss my recovery process from the brain
hemorrhage. However, there were plenty of interviews where I never
discussed this topic, and I have sometimes wondered if decisions about
me were made on some manifestation of my disability, rather than my
actual skills.
The tightrope I felt like I was walking along was the fact that the
brain hemorrhage was a part of my life, an important component of who I
am today, countered by concern of the stigma attached to medical issues
and disability. In many ways, I wish I could have felt free to always
discuss the topic, as it is such an important part of who I am, and I
think it makes for a better interview and discussion of who I am and
what I would bring to a job.
For example, my current employer, the National Disability Rights
Network (NDRN), is the membership organization for agencies that
provide legal advocacy for people with disabilities, and I had no
qualms about disclosing my brain hemorrhage and its effects up front. I
felt comfortable that I would be judged on my qualifications rather
than my disability. Because of that, I freely discussed my past and
challenges I faced, and issues I still faced from the brain hemorrhage,
and I felt it was one of the best interviews in my search for a new
job.
It has been my pleasure to work, the last 5 years, at NDRN and
progress to my current position as deputy executive director for public
policy. Working at NDRN, and with the Protection and Advocacy agencies
all around the country which we represent, has strengthened my belief
that our country is better when we include people from all backgrounds,
including those with disabilities. While employing a person with a
disability may require accommodations, I believe the benefits far
outweigh any costs.
January 2013, will be the twentieth anniversary of my brain
hemorrhage. Testifying today has given me an opportunity to reflect on
what worked to help me successfully return to work. First, a high level
of family, friend, and coworker support was instrumental in my
recovery. Knowing that I had a strong system of support allowed me to
focus on my rehabilitation. Second, the ability to have over 2 months
of good in-patient therapy was critically important. Being able to
immerse myself in therapy pretty much every waking hour, 7 days a week
allowed for a better recovery than would have been possible if I only
did a little in-patient rehabilitation and then shifted to out-patient
therapy. My strong relationship with Senator Jeffords and my desire to
return to work, along with Senator Jeffords' willingness to work with
my therapists to make the accommodations necessary for me to return to
work (looking at office design, workspace layout, and work schedule)
also made a big difference. Fortunately, I was lucky to have all of
those things in place, but many people who experience an acquired
disability are not this lucky.
Again, thank you for the opportunity to tell my story today, and I
look forward to answering any questions you may have.
The Chairman. Thank you very much, Mr. Buehlmann.
And now, for last, we will turn to Dr. Ken Mitchell.
Welcome. Please proceed, Dr. Mitchell.
STATEMENT OF KENNETH MITCHELL, Ph.D. MANAGING PARTNER, WORK RX
GROUP, LTD., WORTHINGTON, OH
Mr. Mitchell. Thank you, Senator Harkin, chairman. Senator
Alexander, thank you for having the opportunity to share with
you a point of view this morning.
My message this morning is a simple one. That is, to
increase return-to-work outcomes over the next decade, we are
going to have to think differently about going back to work and
staying at work with an impairment.
Thinking differently means that we have to move away from
the current compensation claims focus programs and risk
management model. What we need to do is employers, and
insurers, and those people associated with them have to embrace
a health and productivity developmental approach. Such a model
creates a stay-at-work and return-to-work culture at the
worksite, offering specific responsibilities and timely action.
This model also reduces the likelihood of what we refer to as
bureaugenic disability, that is, disability created by the
corporate policies and practices.
By creating the return-to-work culture, employers and
employees become engaged in strategies that protect the
individual's current productivity and long-term employability.
Correspondingly, this culture supports hiring of employees with
existing impairments. Also, we understand that past legal and
legislation dealing with disability encourages compliance with
the law, but does not encourage a culture of return-to-work.
Oftentimes employers ask us, ``Do return-to-works make a
difference? Do the return-to-work programs, stay-at-work
programs actually make a measurable impact?'' The evidence is
clear: they do. We know what return-to-work strategies work and
we know those that do not. Individuals who return to work in a
safe and timely manner do much better than those that do not.
We have a good understanding of why a person does not go
back to work. When a person is unsuccessful in their return-to-
work efforts, unnecessary costs are experienced by everyone:
the employer, the employee, the healthcare provider, the
community in general.
We certainly know what the next decade's workforce is going
to look like. On the whole, it is going to be older, more prone
to impairment, but with a high interest and need to continue
working. Women between the ages of 50 and 60 will be the
largest single workgroup in that next decade's workforce.
With that, we have to look at return-to-work realities.
Every long-term disability starts with a short-term work
disruption. That is the time to act, not when a claim is filed.
To reduce or prevent long-term disability, one must move
upstream and make an impact at the time of injury, illness, and
onset of the symptoms. Please accept this as a blueprint for
moving forward and thinking differently about return-to-work.
First, we have to create timely access. We always talk
about early intervention, but early intervention is relative.
What we need to do is create an access to the point where the
individual, that is, the employer needs to embrace and embed
return-to-work policies in the fabric of the employment
setting. That is, when the person is hired, when there is
performance management issues, when safety and wellness
programs are being initiated, return-to-work has to be embedded
in that particular discussion, not at the time of injury/
illness where it currently is applied.
We also know that the return-to-work decision is made, all
too often, too early or too late, in isolation, with faulty or
incomplete information. And so, from that standpoint, we need
to move in this health and productivity return-to-work model to
a shared decisionmaking model.
In this particular shared decisionmaking model, we need to
bring together the employer, the healthcare provider, and the
insurer to really talk about the actual treatment options,
surgery or no surgery, preferences in terms of style, and how
to go back to work; and most importantly, the consequences of
going back to work or not going back to work, the consequences
of one treatment versus another treatment. From that
standpoint, the shared decisionmaking model is one that we
believe begins to bring together the opportunity to reduce that
gap that often we see in the return-to-work planning.
Then, one of the several things that we need to pay
attention to is when we talk about going back to work, people
say, ``When?'' It is not so much ``when,'' but ``how,'' and
that way, we have to create return-to-work pathways and that is
set by accommodations, transitions, and return-to-work
planning.
And finally, we know in terms of those individuals and
employers who stay engaged with the employee, they have a
greater chance of bringing that person back to work or keeping
them back to work. We must be able to establish incentives for
employers to stay engaged with their employees, not to create a
workforce that is moving in and out of the organization. Such
strategies help to develop engagements, pay dividends in
returning a person back-to-work because you are able to guide a
person in establishing the plan. You are able to create
milestones and assess progress, and then you are in a position
to adjust a treatment plan both in terms of intensity and
direction that allows for the accommodation of that person
requiring and increasing their work functions.
It is building that return-to-work program and that return-
to-work plan embedded into a health and productivity culture in
which return-to-work succeeds and prospers. And with that, a
comprehensive cohesive plan makes a difference in return-to-
work planning, both at the corporate level, at the insurance
level, and at the individual level.
Thanks again for an opportunity to share these points of
view.
[The prepared statement of Mr. Mitchell follows:]
Prepared Statement of Kenneth Mitchell, Ph.D.
Going back to work following a work disrupting injury, acute
illness or chronic disease produces measurable benefits for the
employee, the employer and the community in general. Individuals who
are able to return to work in a safe and timely manner report greater
financial and emotional well-being, reduced need for healthcare
services and greater life satisfaction than those who do not return to
work. Employers who offer return to work programs report less
absenteeism and shorter times off work. Healthcare costs per employee
are reported to be measurably reduced with the application of return-
to-work programs. Investing in strategies to protect the productivity
of the workforce offers a clear return-to-work dividend for all
involved. Evidence-based research highlights the conditions for an
effective return-to-work program. Four building blocks serve as the
foundation for an effective and sustainable return-to-work program:
timely access, shared decisionmaking, return-to-work planning supported
by stay-at-work and return-to-work investments/incentives.
The Return to Work Dividend: Protecting Productivity. The essence
of any return-to-work strategy is about protecting the long-term
employability and productivity of the individual. Productivity goes
beyond completing certain tasks over time. Productivity contributes to
a sense of achievement and mastery, as well as a tangible measure of
personal worth. When an individual's capacity to be engaged in
productive activities is temporarily disrupted by an injury, illness or
chronic disease, the individual, and those who support and benefit from
his or her productivity are affected as well. How the individual, in
concert with the employer, healthcare provider and insurance partners,
responds to this disruption, influences the decision to stay at work,
return to work or take a different path. Staying at work or returning
to work is a process made up of a series of shared decisions,
preferences, options and consequences influenced by specific values and
judgments of those involved.
By any measure, stay-at-work (SAW) and return-to-work (RTW) are
collaborative efforts by a number of stakeholders, each with a set of
self interests and expectations. When these self interests and
expectations are appropriately aligned, return-to-work success is
highly likely. When the self interests compete, collide or take on an
adversarial nature, the process is disrupted, delayed and becomes
unnecessarily costly for all parties.
Debate continues regarding the value, effectiveness and best
strategies of a stay-at-work or return-to-work program. This debate has
sharpened with the current economic realities, emerging workforce
patterns and health care cost trends. The economic viability of the
Social Security Disability Insurance Program (SSDI) and the connections
with the private disability insurance industry has become a critical
part of the return-to-work equation.\1\ Thoughtful innovation and
collaboration are critical to meet this challenge. This testimony is
guided by the following questions.
1. What value and impact do SAW/RTW programs have?
2. What SAW/RTW strategies work and why?
3. What are the benefits and limitations of disability insurance in
protecting an individual's productivity?
4. Why and how do employers encourage employees to continue to be
productive with impairment?
5. What SAW/RTW strategies need to be developed over the next
decade?
1.0 The Value and Impact of SAW/RTW Programs. The SAW/RTW debate
focuses on two core questions, (1) Do stay-at-work and return-to-work
programs have an impact? And (2) If so, how can these programs be
applied in the most effective and timely manner? The evidence is clear.
Stay at work and return- to-work programs make a measurable, positive
impact.\2\ The challenge is in the commitment to and the timing of the
applications. Research over the past 10 years supports the following
conclusions.
1.1 Proactive RTW programs reduce lost time costs, increase
employee satisfaction and benefit the employer.\2\ \3\
Significant decreases in absenteeism and workers
compensation claims can result when RTW programs are integrated in
health and wellness strategies: e.g., 28 percent decline in absenteeism
and 30 percent decline in WC/disability claim costs.
Employees who are satisfied with their employer's response
to injury or illness return to work 50 percent faster with 54 percent
lower cost.
A study of California employers showed that formal RTW
programs led to a 3-4 week reduction (from 9 weeks to 6.2 weeks) in
time to RTW for injured employees and demonstrated that reduction in
time to RTW (beyond just 1.4 weeks for lower wage workers employed by
large firm) can lead to a net savings for the employer.
1.2 Multiple factors independent of an underlying medical condition
influence return to work and supportive work environments facilitate
successful and sustained RTW.\4\ \5\ \6\ \7\ \8\
Supportive work environments are highly predictive of
successful RTW. Workers in highly supportive organizations are 4 times
more likely to successfully function at work after returning to work.
Employers with Employee Assistance Programs (EAP) average
21 percent lower absenteeism rates and 14 percent higher productivity
(Harte, ET al. 2011 cite 24) and employees who use EAP on disability
return to work an average of 14.5 days sooner.
Developing a suite of RTW ``Best Practices'' such as
developing formal, written policies and procedures that apply across
the organization creates a consistent and cohesive SAW/RTW framework.
When opportunities for transitional work or light duty
assignments are available, disabled individuals are twice as likely to
successfully resume work following an injury.
2.0 What Strategies Work and Why? Recognizing the real and
potential barriers to a return-to-work program is critical.
Correspondingly, understanding the conditions that support a timely
return to work is also valuable. The following evidence-based
indicators offer the RTW developer, along with corporate executives and
public policy leaders a blueprint to building effective programs.\9\
\10\ \11\
2.1 What Increases the likelihood of going back to work? The
following factors improve RTW outcomes.
The worker's belief in a high probability of returning to
work.
Flexible employee benefits that support continued work
with an impairment.
Ability to cope with change and multiple stressors.
Non-hostile work environment.
Timely application (within the first 30 days of an injury
or illness) of return-to-work programs.
Flexible employer policies, management style and a non-hostile work
environment appear to be the top indicators for increasing the
likelihood of a safe and timely return to work.
2.2 What Reduces the Likelihood of Going Back to Work? Substantial
evidence indicates the lack of success in returning to work does not
result exclusively from the actual medical problem. Rather, a
constellation of common psychosocial and bureaugenic (corporate
practices and benefits) factors sabotage the return-to-work effort.
These factors include:
Low value of work, negative work environment, low job
satisfaction.
A belief that recovery to previous work function is
unlikely.
Presence of multiple impairments, poor medical outcomes.
Greater psychological stress, multiple life disruptions.
Receiving injury compensation with low economic status.
Distrust of employer and/or insurance provider by the
disabled individual.
Delayed return-to-work planning efforts (> 30 days after
injury or illness).
3.0 Disability Insurance and Return to Work: Disability insurance
(DI) is a crucial part of the financial safety net for individuals who
are impaired and unable to work. Disability insurers are critical
players in the stay-at-work and return-to-work process. The DI products
and the accompanying services are built upon: (1) Eligibility for the
benefit, (2) Meeting a legal definition of disability and (3)
Subscribing to underwriting--risk management principles. Disability
insurance is not an entitlement program, but an income replacement
benefit to individuals who are unable to work and are covered under a
negotiated contract, employee benefit plan or State or Federal
legislation.
Disability insurance and efforts to maintain a person at work or
returning a person to work are not natural partners. In their purest
applications, there are competing self interests among the insurer, the
claimant and the employer policy holder. Risk management, which is an
integral part of any insurance program, creates substantial barriers to
mitigating the impact of the impairment. Figure 1 illustrates RTW rates
aligned with various benefit plan time lines.\11\
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Once Individuals enter into an adversarial relationship with the
employer and the insurer, they must commit significant time, energy and
resources in proving that they are unable to work. The likelihood of
these individuals returning to work in any reasonable time is extremely
low. The disability insurer needs to offer a business model that
reduces the competing interests. Private disability insurance carriers
have done this. The public SSDI program has not.
The SSDI program reports RTW rates of less than 10 percent. Private
disability insurers report RTW rates of 60 percent to 80 percent for
short-term disability (< 6 months off work). For long-term disability
claims (greater than 6 months off work) private disability insurers
report an estimated 20 percent to 25 percent RTW rate depending on the
impairment type. It is clear that private disability insurers are more
successful in supporting a safe and timely return to work. There are
four specific reasons for the differences. They are:
1. Early access to the claimant and employer.
2. Incentives to provide return-to-work services.
3. A measurable investment in dedicated RTW programs run by skilled
RTW professionals.
4. The provision of stay-at-work (SAW) and return-to-work (RTW)
incentives to both the employer and the disabled person.
Table 1 presents the key elements that produce the differences in
return-to-work outcomes.
Table 1.--Contributing Factors to RTW Outcomes
------------------------------------------------------------------------
Private Disability Public Disability
Factor Insurer Insurer (SSDI)
------------------------------------------------------------------------
Access to Claimant & Employer... Contact Six-month
with claimant time off work to
within days of be eligible.
filing of claim. High
Claims initial non
adjudication approval rate (65
process is percent).
completed within One year
5 to 7 days. wait for an
RTW appeals hearing.
expectations Employer
defined early or unlikely to be
prior to claim involved at time
filing. of claim filing
Employer and beyond.
fully engaged.
Incentive to Provide RTW Insurer No
Services. receives financial
measurable incentive to
benefits with a return the
successful return individual to
to work such as: work.
reduced claims Any cost
costs, reduced savings are not
reserves and a redirected to the
satisfied SSA or the Trust
corporate Fund.
customer.
Dedicated RTW Services.......... Insurer No
invests in dedicated RTW
dedicated return- resources.
to-work services May apply
with defined private RTW
responsibilities contractors or
and measurable State vocational
accountability. rehabilitation.
Provide Stay at Work (SAW) and Insurer Various
Return to Work (RTW) Benefits. Includes benefit and
additional cash health care
benefit for protection to the
claimant--Partial claimant for
awards. participating in
Able to the RTW process.
cover work site
accommodations.
------------------------------------------------------------------------
4.0 Why Do Employer's Use Return to Work Programs? The Burton Blatt
Institute (BBI) at Syracuse University, in concert with its Employer
Research Consortium (ERC), is currently engaged in a unique exploration
of the decisionmaking of employers in applying return-to-work programs.
Preliminary findings from the National Study on Employers' RTW Policies
and Practices \12\ found in a sample of 172 employers that 44 percent
of respondents reported offering a formal return-to-work program.
Forty-three percent reported offering an informal return-to-work
program. The remaining employers (13 percent) reported offering neither
formal nor informal return-to-work programs or services. Preliminary
findings from this exploratory study offer interesting insights to
employer practices. For example:
4.1 Why Have a RTW Program? One of the principle research questions
of the RTW Survey was ``Why does your organization have a formal
return-to-work program?'' The top five responses were:
1. Was the right thing to do.
2. Made good economic sense for the organization.
3. Needed to reduce lost time.
4. Considered RTW services to be a best practice for their HR
programs.
5. Part of overall corporate strategy to control medical and lost
time costs.
The top five responses to the question, ``Why do you have an
informal return-to-work program'' were:
1. Was the simplest to implement.
2. Offers more flexibility.
3. Lacks internal resources to implement a formal program.
4. A formal program was determined not to be necessary to achieve
RTW goals.
5. Formal programs not required by State or Federal regulations.
The top five reasons offered as to why employers did not offer a
return-to-work program were:
1. Lost time is not an issue, managing lost time not a priority.
2. Too many competing interests along with too many operational
sites.
3. Any changes made in the organization take time and are
complicated.
4. No internal champion to move program forward.
5. Tied--No light duty jobs available. Not required by State of
Federal regulations.
The early conclusions of the National Study on Employer RTW
Policies and Practices suggest:
65 percent to 70 percent of participating employers
reported lost time and the associated costs to be a significant,
ongoing issue for the organization.
87 percent of participating employers consider return-to-
work programs as valuable elements of their efforts to control lost
time and reduce the associated costs.
The primary reasons for implementing a formal or informal
program were: (1) it was the right thing to do and (2) resulted in
reduced lost time along with a reduction in the associated costs.
4.2 RTW Program Elements: The BBI/Syracuse National RTW study
identified the following strategies to be essential parts of an
employers' support for a safe and timely continuation or resumption of
work.
Essential Strategies
Transitional work--incremental resumption of work tasks
during a well-defined timeframe.
Limited light duty assignments to maintain safe work
function during periods of impairment.
Written RTW policies that define the RTW process with
specific guidelines and accountabilities.
Work site accommodations applied to protect against lost
function.
Commonly Used Strategies
Use of individual RTW plan.
Work conditioning programs to increase work capacity
during transitions--Ergonomic assessments.
Designated RTW Coordinator.
Supervisor education about RTW policies and practices.
Less Commonly Used Strategies
Transitional work fund.
Behavioral health assessments.
Physician education.
On site medical unit.
5.0 Blueprint for the ``2020'' Workforce. The following SAW/RTW
Program Blueprint offers employers, public and private disability
insurers, healthcare providers, as well as public policy developers a
RTW Development strategy to meet the demands of the American workforce
over the next decade.
5.1 Investment vs. Entitlement. To achieve RTW dividend tangible
investments need to be made. Developing return-to-work strategies is an
investment in protecting the productivity of the worker. Investments by
all key stakeholders are required. For example:
Employers who invest in SAW/RTW policies and practices
create a health and productivity (H&P) culture that: (1) Addresses job
performance issues prior to a lost time event; (2) Creates flexible
policies and work place benefits that respond to emerging health-
related impairments; (3) Communicates that a return to work is expected
and (4) Guides the employee in how to stay at work or return to work in
a safe and timely manner through a fair and consistent process.
Disability & Health Insurers who invest in a fair and
timely adjudication of lost time claims, as well as offer targeted
employer incentives protect the employee's productivity. The disability
insurer who invests in a dedicated RTW planning and coaching service
supports clear pathways back to work. The healthcare insurer invests
with incentives for participating physicians to include return-to-work
planning as part of the treatment plan.
Employees who invest their time and energy to become fully
engaged in the treatment plan and return-to-work planning provides the
answer to the basic RTW question, ``Who is accountable for helping the
individual back to work?'' One person! The disabled employee needs to
be accountable for solving his or her health and productivity
predicament. Guidance and support need to be readily available for
those who become stuck.
Healthcare providers are placed as the primary advocate
and RTW gatekeeper for the disabled worker. The medical community must
invest time and talent to participate in a shared decisionmaking
process. Shared decisionmaking introduces evidence-based medical
practices with return-to-work options, preferences and likely
consequences into the treatment plan. The physician moves from an
advocate or adversary to become a true SAW/RTW partner.
5.2 Understand the nature and scope of the ``2020'' workforce.
Developing SAW and RTW strategies is based on the nature of the target
workforce over the next decade. The ``2020'' workforce offers:
Scope. Forty percent of Americans who are 55 or older were
in the workforce in 2011.\7\
Expectations. Seventy-four percent of respondents in a
Wells Fargo survey \13\ expect to work in their retirement years; 47
percent say they will do ``similar work'' to their pre-retired years.
Critical Work Group. Female labor force participation is
increasing: 68 percent of women 55-59 worked in 2011 as compared to 48
percent in 1975. Women between the ages of 40 and 60 will be the
largest single worker cohort in the American workforce over the next
decade.\14\
Epidemiology. Almost 50 percent of Americans have one
chronic health condition and of this group, nearly half have multiple
chronic conditions.\7\
5.3 Move to a Health and Productivity RTW Model. Returning to work
or staying at work with impairment involves a series of decisions
directed by personal values, judgment, and the capacity to solve the
health and productivity predicament facing the individual. The current
disability insurance risk management model applied by both public and
private disability insurers does not recognize this. This model works
in absolutes, that is, medical evidence determines whether or not you
are disabled. Unfortunately, disability is subjective and depends on
factors other than medical evidence. The risk management model offers
limited interest in time or capacity to help the individual develop or
regain work function.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Health and Productivity RTW model (Figure 2) recognizes the
realities of the various contributors as to why a person is unable to
work. More importantly, it recognizes the strategies that can be
applied in a timely fashion (e.g., prior to the lost time event) to
increase the likelihood of a person staying at work or returning to
work. The principle elements of the Health and Productivity (H&P) RTW
Model and their public and corporate policy implications are:
5.3a Timely Access. Individuals appear to make return-to-work
decisions near the onset of the disabling event, onset of symptoms and
diagnosis. These decisions are often made based on current events or
conditions at work and in their social/family environment, often
supported by incomplete/inaccurate information.
RTW expectations can be made at the time of hire, during
safety and benefits meetings, integrated into labor management
agreements and wellness/risk reduction programs.
Timely access creates opportunities to identify and
develop the skills the individual will need to engage in the stay-at-
work or return-to-work process.
Early access creates the opportunity to recognize and
mitigate job performance and employee or labor relation issues that are
cloaked as health and disability problems.
Public and Corporate Policy Implications
Short-term disability Insurance benefits with the
companion return-to-work planning resources become linked or made part
of public DI programs to insure early access.
The Public Disability Insurance (SSDI) program needs to
connect with employers in a way that creates a measurable economic
incentive for the employer to support the employee at work or enable
the individual to return to work in a timely fashion.
5.3b Shared Decisionmaking. Returning to work is a series of
decisions made by the employer, employee and the participating
healthcare and disability insurance partners. Applying a shared
decisionmaking model offers the opportunity to apply accurate
information efficiently across the participating stakeholders. Clear
options, preferences and most importantly, consequences are defined.
Public/Private Disability Insurers and medical providers
who invest in developing a shared decisionmaking model link the key
participants in an informed decisionmaking process.
Evidence-based RTW strategies should be included in the
decisionmaking process defining the most likely approaches that support
a stay-at-work or return-to-work effort.
Appropriate assessment tools should be used to identify
the individual employee's strengths, capacity for good judgment and
decisionmaking as well potential psycho-social barriers to the return-
to-work process.
Public or Corporate Policy Implications
Support research into the applications of shared
decisionmaking as part of the disability claims and return-to-work
process.
Shared decisionmaking strategies are embedded in the
employer and insurer's health and productivity management programs.
5.3c SAW/RTW Planning. There are three elements to a formal RTW
plan: Clarity, Simplicity and Integration.
Clarity. Ambiguity is a friend only to those who may have
a different agenda than going back to work following an injury or
illness. Creating an unambiguous RTW plan offers clear expectations and
direction.
Simplicity. Individuals who have difficulty returning to
work may have limited capacity or knowledge to navigate the SAW/RTW
process. The RTW Plan creates the ``How'', a road map to stay or go
back to work. The RTW plan offers all stakeholders clear direction with
a reasonable, but flexible time table.
Integration. The RTW Plan integrates the treatment plan
with the RTW options. The attending physician can accurately calibrate
the success of the treatment plan and make appropriate adjustments in
the intensity and direction of the care.
Public or Corporate Policy Implications
A return-to-work plan needs to be incorporated as a ``best
practice'' by employers, disability insurers and healthcare providers
as the guide to develop and support any RTW decisions.
Specific skill development programs for RTW planners/
coaches are recommended in dealing with and managing ambivalence and
resistance to going back to work.
5.3d SAW/RTW Incentives. Common sense strategies can include
various incentives to protect productivity.
Public or Corporate Policy Implications
Employers should require a demonstration of SAW/RTW
programming as they select health and disability insurance programs for
their employees.
Federal contractors should demonstrate clear SAW and RTW
practices around recruitment, retention and promotion of people with
disabilities under Section 503 of the Rehabilitation Act.
Bibliography
1. Autor, DH, The Unsustainable Rise of Disability Roles in the
United States: Causes, Consequences and Policy Options, Department of
Economics, MIT, National Bureau of Economic Research, November 2011.
2. McLaren, C.F., Reville, R.T., & Seabury, S.A. (March 2010).
Working paper series WR-745-CHSWC: How effective are employer return-
to-work programs? RAND Institute for Civil Justice paper prepared for
the Commission on Health and Safety and Workers' Compensation.
Available: http://www.rand.org/pubs/working_
papers/2010/RAND_WR745.pdf.
3. Aon Hewitt. (2011). The mechanics of absence management:
Effectively administering absences and the FMLA. Available: http://
www.aon.com/attachments/human-capital-consulting/
AbsenceManagement_2011_Mechanics.pdf.
4. Muijzer, A., Groothoff, J.W., Geertzen, J.H.B., & Brouwer, S.
(2011). Influence of efforts of employer and employee on return-to-work
process and outcomes. Journal of Occupational Rehabilitation, 21: 513-
19.
5. Harte, K., Mahieu, K., Mallett, D., Norville, J., & VanderWerf,
S. (2011 Third Quarter). Improving workplace productivity--It isn't
just about reducing absence. Benefits Quarterly, 27 (3): 13-27.
6. Chrichton, S., Stillman, S., & Hyslop, D. (2011). Returning to
work from injury: Longitudinal evidence on employment and earnings.
Industrial and Labor Relations Review, 64 (4): 765-85.
7. Hymel, P.A., Loeppke, R.R., Baase, C.M., Burton, W.N.,
Hartenbaum, N.P., Hudson, T.W., ET al. (2011). ACOEM Guidance
Statement: Workplace health protection and promotion: A new pathway for
a healthier--and safer--workforce. Journal of Occupational and
Environmental Medicine, 53 (6), 695-702.
8. How Do Organizational Policies and Practices Affect Return to
Work and Successful Work Role Functioning Following an MSD Injury?
Benjamin C. Amick III, Ph.D. Scientific Director Institute for Work &
Health Professor University of Texas School of Public Health Institute
of Work and Health January 2011, Toronto, Canada. Available: http://
www.iwh.on.ca/plenaries/2011-jan-18.
9. Aylward M.A. Tackling Barriers to recovery and return to work:
Securing behavioural and cultural changes Presentation at SEAK Worker's
Compensation & Occupational Medicine Conference, July 2011, Hyannis
Port, MA.
10. Disability Management Employers Consortium. (2010). Foundation
for Optimal Productivity: The Complete Return to Work Program Manual.
11. Christian, Jennifer, ``A New Paradigm for Workers Compensation
& Disability Benefits Systems: The Work Disability Model,'' keynote
address, 18th Annual Workers' Compensation Educational Conference,
Houston, TX: Texas Division of Workers' Compensation and the
International Workers' Compensation Foundation (June 10, 2008), 48.
12. Adya, M, Mitchell, K, Cirka, C , Preliminary Report, National
RTW Study in Employer Policies and Practices, May 2012, Burton Blatt
Institute, Syracuse University, Syracuse, NY.
13. Wells Fargo (2011) News Release: 80 is the new 65 for many
middle-class Americans when it comes to retirement, Wells Fargo
Retirement survey https://www.wellsfargo.com/press/2011/
20111116_80lsTheNew65.
14. U.S. Bureau of Labor Statistics, January 2012.
Acknowledgments
Special thanks go to:
The Burton Blatt Institute at Syracuse University for its
support for the National RTW Study.
Carol Cirka, Ph.D. Associate Professor and Chair,
Department of Business and Economics at Ursinus College, Philadelphia
PA, who provided the extensive research and editorial support.
Jennings Mace, Ph.D. for his editorial support.
The Chairman. Well, Dr. Mitchell, thank you very much for a
very profound statement.
I know Senator Alexander has to leave shortly, and I am
going to yield to Senator Alexander for any statement or
questions he might have for the panel.
Statement of Senator Alexander
Senator Alexander. Thanks, Mr. Chairman. That is a great
courtesy.
I have enjoyed the testimony I have heard. I read the other
testimony, and I have a meeting of a committee, of which I am
the ranking member, at 11. So I thank Senator Harkin for his
customary courtesy.
I especially wanted to welcome Tom Watjen who, from the
presidency of the Unum Group in Chattanooga, that is a Fortune
250 company, as he has already testified, has about 3,000
employees in our State. And is really in the business of
helping employers help their employees return to work after
they have been sick or after they have been injured.
Last year, and I know you mentioned this in your earlier
testimony, but I would like to go back to it a little bit, if I
may, Mr. Watjen. You came by my office and we talked about a
Charles River survey that you had done about income protection
for employees.
Could you summarize, again, the two or three key findings
you gathered from that? How that has affected your policies of
devising products or strategies to help employers help their
employees get back to work after they have been hurt or
injured?
Mr. Watjen. Certainly, Senator. It is nice to see you,
Senator. Thank you very much and I will.
The Charles River study actually was a very important
process that we went through. We started it about 2 years ago,
actually, because whereas we can see tremendous value each day
for the things we do for our customers during their time of
need, what we can do for employers helps them deal with a very
critical absence of an employee. We were struggling a little
bit to figure out how can we connect with some of the broader
things that are happening, especially here in Washington? And I
think that is what drove the decision to do the study.
What we found, actually, was things that quantified things
that are intuitive, which is, the more people take personal
responsibility for their own affairs, frankly, it is good for
them and it is good for being able to be sure our public
assistance programs are only there for people who desperately
need it. So, it quantified much of that.
As you saw from my testimony, one of the things we found
for those that do have private disability insurance, which is
roughly 30 percent of those in the workforce today, the sheer
fact that they have the ability to draw from that coverage,
both in terms of the financial protection plus the return-to-
work services they had, really prevented about 575,000 to
600,000 individuals per year from having to seek public
assistance, which saves the Government about $4 to $5 billion a
year.
Senator Alexander. Why is the percentage only about one-
third of people have that kind of private insurance?
Mr. Watjen. We struggled as an industry, frankly, to raise
the awareness. And as you saw from my testimony, one of the
things people really often do not appreciate is the fact that
over the course of their working careers probably 30 percent of
the individuals actually suffer some disabling experience which
will keep them out of work for 6 months or more. And again, as
you know, the fragility of Americans today, many people cannot
cope very adequately with the loss of an income.
Senator Alexander. Well, you----
Mr. Watjen. We have had a real education issue to make that
need better understood both at the employer level, but also at
the individual consumer level.
Senator Alexander. But your customer is the employer,
right?
Mr. Watjen. Right, it is.
Senator Alexander. So you have to persuade him or her that
it is good for the business.
What do you tell them? It is going to cost them more money.
Mr. Watjen. It is, but it is actually surprisingly
inexpensive. For $20 or $30 a month per employee per year--per
month, you can actually get very basic coverage for your
employees.
Senator Alexander. Does the research show that it is a
benefit that employees notice or are employees not very aware
of this?
Mr. Watjen. No, they notice it and especially when they see
a coworker, for example, who may not have had the coverage, and
have a condition like this emerge where they did not have
either the financial support or the return-to-work resources to
get them back to work. And they can see, firsthand, how that
can have a dramatic impact on the family because, again, as
good as the public assistance programs are you cannot
adequately replace the loss of income by seeking Federal
support. It is just not possible.
Senator Alexander. This committee, and the Congress, has
struggled with what we call ``The Class Act,'' which is part of
the health insurance law, and there were concerns about its
financial viability when it passed. President Obama's
Department of Health and Human Services has raised some
questions.
What has our discussion about that, about the Class Act,
had on the services that you provide?
Mr. Watjen. It is an interesting question, because there is
the coverage that one gets while they are actively engaged in
the workplace, which is really what income protection and
disability is. The Class Act was really referring more to long-
term care which----
Senator Alexander. Yes.
Mr. Watjen. Gets more to when you are not working, frankly.
What support do you have at times, which obviously is a
significant issue for society in terms of the aging population?
Senator Alexander. So there was not much relationship
between them?
Mr. Watjen. They are two separate things, but oftentimes,
an employer will consider, actually, adding long-term care
coverage as part of their package of benefits for their
employees. So that is where it connects.
It connects not so much in the coverage, but it connects in
terms of the employer oftentimes thinking of that as
potentially a benefit they may want to provide their employee.
Senator Alexander. My time has expired. Mr. Watjen, thank
you for coming.
Mr. Watjen. Thank you, Senator.
Senator Alexander. And Senator Harkin, thank you very much
for your courtesy.
Mr. Watjen. Good to see you. Thank you, Senator.
The Chairman. Thank you, Senator Alexander. I know you have
to leave right now, but I just want to followup on Senator
Alexander's question. And that is how we get more employers to
cover with disability insurance $30 a month. I suppose if you
have a lot of employees that adds up. Is this a deductible
expense, I assume?
Mr. Watjen. For the employer, yes. Yes.
The Chairman. I am just wondering if we should have more of
a carrot out there somehow especially for small employers. If
it is deductible, I mean. If, in fact, that Charles River study
that shows all the savings that we get from people returning to
work, saves the taxpayers a lot of money.
So I am just wondering, to balance, maybe it ought to be a
credit against taxes rather than a deductible?
Senator Alexander. Well, that is interesting. I did hear
one witness encourage us to think of carrots instead of
mandates. I heard that part.
What do you think of that, Mr. Watjen?
Mr. Watjen. I think anything we can possibly think about to
create more of the awareness and more incentive, because I do.
I think, as some of the others have already spoken,
employers feel a sense of responsibility to their employees to
be sure that they are properly cared for, and everything we can
do to actually make that easier is certainly something we all
should work toward.
Education is a piece of it. I still think there is a lack
of appreciation for this issue and how it affects many of their
employees. I do not want to underestimate the importance of
education. We constantly work at it. That is another place that
I think we could seek some help in being sure we are getting
the message out at the employer level, but at the individual
consumer level.
And you are right. The employer actually is the one that
makes the decision, but if they are hearing from their
employees that they actually are worried about this issue, that
can also affect the employer's appetite to do something like
this.
I would also add, that we all know employers are facing
significant strains these days. And I think what we often find
in this environment, especially at the small and mid-size
employer, is actually the employer is asking the employee to
pay a portion of the cost. That is a very common way to begin
to get the employer, even those that are feeling intense
financial pressure, to take on this responsibility, finding a
way to share that cost--either a part of it or all of it--with
the employee as well.
The Chairman. I guess the problem is human nature being
what it is, I mentioned that in my opening statement, there is
a broad variety of factors that affect a person's decision in
that. But human nature being what it is, young people are never
going to get sick and they are never going to get injured.
Senator Alexander. They are invincible.
The Chairman. They are invincible. So I am just wondering
out loud. I do not know about anyone else here, just how we get
more people to have disability insurance coverage.
I want to couple that with another question and that is
that people like Unum and others, they do a good job in working
with people to get them back to work, but SSDI does not. Is
that something we ought to look at? SSDI, you go on it and that
is it. So it seems to me that we would be better off if we
could encourage more people to be covered by disability
insurance, not only from the financial aspect, but also from
the aspect of the private insurers having an interest in
getting people back to work. SSDI does not seem to have that
interest.
How do we get the Federal Government, I cannot control
employers, but what should the Federal Government be doing to
get that 30 percent rate up to, make it 70/30 or 90/10 rather
than what it is right now? Any thoughts on that from anyone?
Mr. Buehlmann. I think education is definitely an issue.
Having been 24 years old when I had my stroke, I thought I was
invincible.
The Chairman. Oh, sure.
Mr. Buehlmann. You did not think it was going to happen to
you, and it does happen. But as people start to age and get
older, we are going to see much more disability out there, and
I think people need to understand that. A lot of people are
sort of on the brink of paycheck to paycheck, and you need to
understand that you need some help to be able to bridge the gap
to get back to work.
You need to educate people that these things are important,
and they need to plan for these contingencies. People just do
not think it is going to happen to them, but it is going to
happen much more now because we are living a lot longer. We are
experiencing a much longer life-span than we did in the past.
And use my story. Use other stories of people that you
know. You see the coworker that has a disability that has an
injury. They need to understand that this could happen to them
at any time.
Ms. Amato. Senator Harkin, I would agree that education is
really paramount. I think that helping maybe model samples of
younger people might get the need for life insurance. And
certainly people become disabled at a much higher percentage
early in their working life than the income protection they
need for their family from passing.
Sometimes what employers will do is model for their
employees the value to different benefits. Obviously, there are
different situations for different employers, depending on
their size and so forth in terms of trying to provide a
comprehensive benefit packet of the cost of all the benefits
they offer and comprehensively what makes the best benefit
offering for their employees.
But I think that you need to help educate and particularly
in the SSDI world. I think that having a more comprehensive
integrated disability management approach in the SSDI world
would make a big difference to touching those people that are
out on disability and helping engage them again.
The Chairman. Let me followup on that with you because you
talked about the integrated disability model.
Why has it not been more widely implemented?
Ms. Amato. It has been out there for years. I think that
there might be a lot of employers that may not be aware of it.
It also requires a change of thought in terms of the business.
There might be employers or organizations that are not sure how
to support employees with disabilities, and so that fear factor
might hold them back from looking at how to present and offer
programs that are going to be helpful.
The Integrated Disability Management program, IDM, requires
that you are looking at all of your different benefits, and
disciplines, and departments in terms of how each of those
touches the employee and their ability to stay at work. And I
think that Dr. Mitchell had really articulated it well that it
is touching each of these: a safety employer, a risk
management, the health and benefits programs, and so forth.
So I think it is an education factor. It has been out there
a long time, but a lot of organizations may not be aware of it
and then also helping to collaborate the different departments
that need to offer that program.
The Chairman. Before I turn to Senator Hagan, let me ask
one followup on that, and that is, I mentioned in my opening
statement, and I read it in some of your statements also, about
the study that was done on the cost of accommodations. And that
literally it was, I forget the percentage I mentioned, but a
high percentage was nothing, and then $500 or so for
accommodations for people with disabilities.
I have a sense, and this is sort of anecdotal from my
talking with employers in my own State, and that is that, ``Oh,
my gosh. The cost would be prohibitive.'' So I am wondering if
there is a misconception out there about how much the cost for
accommodations would be and is that realistic.
The first question is: Is that a realistic number or does
it cost more than that for accommodations? And second, if those
are kind of ballpark figures, how do we get that information
out?
Mr. Mitchell. Senator.
The Chairman. Ken.
Mr. Mitchell. I think you are absolutely correct. The data
you cited is accurate that the cost of an accommodation is
minimal, at best. What happens is that examples are used where
there is a massive need to put something in like an elevator or
to change this. So what happens is that is what gets promoted,
that is what gets shared as opposed to the day-to-day, 99
percent of accommodations that make no difference at all in
terms of cost.
What we found when we help an employer build a return-to-
work program, we ask them, ``During the course of the day, how
do you make adjustments for someone not being there, or
something happening, or a tool breaks?'' And you find out that
they have these strategies already in play, they just have not
connected them to managing someone who has an impairment, or
has a visual impairment, or is going through chemotherapy, and
they have a fatigue factor or something like that.
A lot of it is making sure that you do not allow the hype
in terms of special events to override that, but also coming up
with a plan. We find that when you help an employer--they have
safety programs, you have fire drills. Invite the employer to
talk about what-if. ``If you have a person that gets injured or
ill, how do you compensate for a shift, a week, 2 weeks?'' You
can build and that is what we call return-to-work pathways. You
have a plan to bring a person back to work, even though you do
not know who is going to get hurt, or the type of injury it is
going to get, but you have a process and a plan.
When you get an employer thinking that way proactively and
creating that planning culture, that return-to-work culture we
talk about, now you have a chance where people can move very
timely and very smoothly into applying a reasonable
accommodation.
The Chairman. But who does this, Work RX or does SHRM? Do
you consult with employers on this at all?
Mr. Mitchell. We have a series of education programs,
certainly the insurance groups, everyone from Unum, from
Prudential, AARP, any of those particular groups, they provide
these programs. There is a myriad of resources that SHRM is a
leader in putting out workshops and seminars in terms like
this.
I am doing a workshop with the American Association of
Occupational Health Nurses on dealing with the older worker in
the workplace, which is the essence of that is accommodation to
maintain the productivity of the older worker. And so, from
that standpoint, it is a matter of education, but it is also a
matter of will and it is a matter of self-interest. If you can
get the employer to focus on that, then you get them to comply
with creating that culture, and that is what makes the
difference.
Mr. Watjen. Mr. Chairman, if I could add too. I think we
would agree very much with Dr. Mitchell's comments.
This is not a costly undertaking. What ends up happening is
that the sensational sort of change actually gets most of the
attention.
The Chairman. Yes.
Mr. Watjen. But if you look at the experience we have had,
the most important thing we could do is try to develop a part-
time to full-time regimen with an individual. That is not a
modification of a workplace; that is a simple sort of plan that
you develop that is customized for that individual based on the
issues that they are dealing with.
Then if you get into work modifications, most of them are
pretty minor. It is a stand-up/sit-down desk. It is a keyboard
that is more adaptive for maybe an issue that you are dealing
with--such as carpal tunnel syndrome. It is a hearing
impairment sort of tool. These are technologies and tools that
are very readily available at very inexpensive cost. Those are
the kinds of things that we can help our customers very much
sort through.
But I do think as Dr. Mitchell said, what often gets the
attention is some of the most dramatic things where, I think,
people reach very quickly some conclusions that are
inappropriate. What it really is, is those things that I
mentioned are the more bread and butter than what happens with
the vast majority of conditions that we find ourselves and our
teams exposed to.
The Chairman. Yes, I wanted to yield to Senator Hagan, but
Miss Walters, go ahead.
Ms. Walters. Thank you, Mr. Chairman.
You mentioned SHRM. I think it is a very exciting time. I
think the timing of this hearing. SHRM is involved in a lot of
initiatives and I find businesses are learning. It is kind of
the eggshell of, ``Oops, I do not know if I should even try to
address this.''
Quick example, SHRM has forged a very close alliance with
ESGR, Employer Support of the Guard and Reserves, and knowing
that we are going to have a lot of folks coming back to us,
veterans, reservists coming back, and some of those will be
persons with disabilities. So forming those partnerships
through SHRM's State councils and local chapters has been a
great opportunity to learn about the needs of that population.
SHRM also has a new When Work Works program, and a key
component of that program addresses workplace flexibility
including the Sloan Awards. And employers across the country,
2011, had hundreds of winners of the Sloan Awards, and that
really focuses on showcasing employers proactive practices in
workplace flexibility, including providing opportunities for
persons with disabilities to stay at work and return to work.
So it is a really dynamic, interactive opportunity for HR
professionals and business owners. I have seen relationships
forming with State and local chambers of commerce to partner a
business with HR with a lot of these other entities to learn
about, ``What can we do? What do you do? Let us not reinvent
the wheel. What works well? What are some of the pitfalls to
avoid?''
So I will stop there.
The Chairman. Senator Hagan.
Statement of Senator Hagan
Senator Hagan. Thank you, Mr. Chairman, and thank you for
holding this hearing.
I wanted to followup on what you just mentioned about
veterans. North Carolina is a strong military State. As a
matter of fact, when you look at the population, we have
probably a third, either active duty military or veterans in
our State, and I am obviously very, very proud of that, and I
come from a strong military family.
But we also have a lot of disabled veterans, and in 2009,
the Bureau of Labor Statistics found that 2.8 million or 13
percent of veterans reported a service-related disability. And
of the 2.8 million disabled veterans, almost 50 percent of them
are in the workforce. We do have a high unemployment rate for
our veterans right now, so that is something I am very
concerned about.
We passed a bill last year called the VOW to Hire Heroes
Act, and it put some tax credits in for hiring veterans. And
then if you have a service-related disability, then that tax
credit is doubled. So right now, companies can get a tax credit
of about $9,600 for a service-related disability to hire a
veteran.
So my question is directed to the full panel: do you know
if employers are using this tax credit? And how can we make
sure that employers looking to hire veterans, and the veterans
themselves looking for work, know about this tax credit?
Ms. Amato. Senator Hagan, thank you.
Yes, there are many employers initiating Wounded Warrior
programs that are very successful in integrating the veteran,
the disabled vet back into the workplace, and collaborating
with their veteran employee resource groups to give them a
buddy, somebody that can help them transition from the military
world to the civilian world, and how that is different in terms
of rapport.
So there is a lot of support for the Wounded Warrior
program and employers are hiring veterans with really good
success. And what comes from that also is the value to the
other employees that really feel good about the place they
work, and integrating the wounded warriors. It is a
collaboration in this area with many of the large employers who
are actually championing to increase the wounded warrior
hiring.
Senator Hagan. That would be great. Yes.
Mr. Mitchell. One of the barriers that we have seen that
seems to dilute the impact of tax credits is we find employers
do not know how to integrate that injured worker or the
disabled worker.
``It sounds good. We are all for it, but I am not
sure how to do that. I am not sure what really needs to
be done. Someone who might have traumatic brain injury,
or PTSD, or something else, we are not sure.''
Along with tax credits or any legislation, and not just
information and education programs, but one of the strategies
we recommend is that organizations create mentoring programs.
That is, mentor an employer on how to build, not a light duty
program, but a transitional work program. Light duty programs
get people in trouble because they put people on a light
position and they can stay there for their whole career
sometimes. Transitional programs bring back a person in a
graded, incremental way back to full productivity.
Helping a smaller employer, in particular, show how they
can do that in their particular workplace becomes an effective
way of giving them the skill to take advantage of the tax
credit. So when the question is asked, why won't someone use
the tax credit?, it is not because they do not want to. It may
be because they do not know how to.
We have to recognize that ``how'' part of building return-
to-work programs.
Senator Hagan. Good point.
Dr. Mitchell and Mr. Watjen, you both have talked about how
disability insurance is a crucial part of the financial safety
net providing about 60 percent of income replacement to
individuals who are unable to work. Obviously this coverage is
so important for employees, but also benefiting the employers
for improving recruitment, and retention, and productivity.
I know we have been talking about this study by the Charles
River Associates that showed that employer-sponsored benefits
such as disability insurance actually helped save the
Government money up to $4.5 billion per year by reducing the
pressure on the SSDI program. So I think the value of income
protection benefits for employees, and employers, and the
Government is certainly clear.
What percent of employers offer disability insurance to
their employees? Then if you could talk about what percentage
of the employees then take advantage of the disability
insurance if it is offered? And I guess, the final question is,
how can we encourage more employers to offer the disability
insurance to their employees? I know Senator Alexander was
talking about carrots, what can we do to provide carrots for
that?
Mr. Watjen. I will start, Senator Hagan. Good morning.
Senator Hagan. Morning.
Mr. Watjen. Just on the employer side, actually, and it
varies substantially between large employers and small
employers. You would find large employers--probably 80 to 90
percent of the employers will actually have some disability
plan in place. That number will drop considerably, probably
down to 25 to 35 percent for small employers. So, it really
does differ quite dramatically depending on which type of an
employer you are talking about, which obviously is where some
of the challenges have been.
We talked about some of the challenges the small employer
faces in being sure the small employer can see the value of a
program like this, but also, where they can share the costs
with the employee. There is a lot of work to be done there to
educate. At that level, we have some different customer
dynamics between the large employer and the small employer.
I mentioned the other statistic, which is, roughly 30
percent of the employees in the workplace actually have
disability insurance. It varies pretty dramatically by
organization in terms of how many take it when they are offered
the chance, especially if they have to use their own money. Can
we actually share it with them? Can they appreciate the value
of that disability insurance? That is a challenge for us. It
has been a challenge for the industry for decades in terms of
people, again, appreciating the fact that they are much more
likely to have a disabling condition over their lifetime,
working lifetime, than they are, for example to, unfortunately,
pass. That is a very hard concept to get across and that is
where financial education is so important in this process.
We have challenges at the small employer level. And then
throughout every organization, getting people to sign up for
it, especially if they are having to use their own money, we
have the challenge of people appreciating the probability of
having a disabling condition is much higher than you think.
Mr. Mitchell. Also to your question about how can we get
companies to give more? Here is a suggestion or a tack I take
is that all too often when someone is trying to buy an
insurance policy, we focus on the cost. And it cost this, it
cost that, so we have used that vocabulary here today.
What I focus is on the investment. That is, you are going
to get something for this. It is not just something you are
buying and are never going to use. If you begin to focus on the
investment, whether it is insurance itself or the return-to-
work program that they might be involved in, you can begin to
quantify the value of that investment.
What we see is that basically a return on investment
return-to-work program is about 1 to 7, 1 to 8 in terms of
that. We know we can measure that in terms of companies that
have put in a return-to-work program, they realize that amount
of return on that investment, or what we call the return-to-
work dividend.
But an important part of that is putting it into the
currency of a company. I had a bank that was kind of resisting
getting people back to work, and so I asked them. I said, ``Do
you understand what the impact is to you?'' He said, ``Well,
yes. We know what the cost is.'' I said, ``No, the impact.''
And what we did was we measured, we took the amount of time
people were off of work, we brought that together, and we put
it into full-time equivalencies in terms of the number of
people that hours created in terms of lost time, and we find
out for this bank, they had 10 branch banks open for business
all year, and no one was there.
Senator Hagan. That is interesting.
Mr. Mitchell. We quantified the impact in productivity. Now
building a return-to-work program was an investment, not a
cost. After a year of the return-to-work program, we found out
that from that, we have that in terms of instead of having 10
banks open for the year and no one there, they only had 5. They
can measure that and that is the investment. That is the key to
getting more people, both employers and individuals, to invest
in that.
Senator Hagan. Thank you, Mr. Chairman.
The Chairman. That was just fascinating that kind of a
study.
Let me turn to something else. I will stick with you here,
Dr. Mitchell. You pointed out, let me get back to your
testimony here.
``The SSDI program reports return-to-work rates of
less than 10 percent. Private disability insurers
report return-to-work rates of 60 to 80 percent for
short-term disability. For long-term disability,
payments greater than 6 months, private insurers report
an estimated 20 to 25 percent depending on the
impairment type.''
So it is clear that private insurers are pretty darn good
at getting people back to work. We know that from Unum. Is
there something that we should learn from this for SSDI?
Mr. Mitchell. Yes, I think it is. If you had someone that
takes 6 months to 9 months to prove that they cannot work, you
should not expect them to go back to work. If you take that
long time to prove that you cannot work, that is to be
eligible, and say you cannot work to get your benefit, it is
very unlikely that a person is going to go back to work.
So what happens is the SSDI decision, whether a person can
work or not, is so far down from the time that they could not,
they stopped working that the idea of going back to work is
almost not a question just because they have been separated
from the workplace for so long. They have had to show evidence
that they cannot work. And whether they get the Social Security
or not, now they are in a situation to undo what they have
actually convinced themselves that they cannot do.
Social Security is basically a system that is there as a
long-term social financial network. It is not designed to bring
people back to work, but they like to think that they can, and
in the hopefulness you can, but there are a lot of things going
on in this in a way that prevents that from happening. And the
most important part is timing.
As Tom mentioned, and this occurs in all the disability
insurers in the private sector, they are talking with the
person within days, within weeks of the event and they are
fully engaged with them. The Social Security may have a person
who has not even talked to their employer in 6 months, and most
likely is not even connected to that employer any more. So they
do not even have an employer to go back to.
So that is an important part right there, the actual timing
and the nature of the conditions that the Social Security
Disability Administration is presented in terms of when they
receive a claim for an individual that has been off work.
The Chairman. Well, we have been trying for a long time to
get that time limit. Now I think it is down to 500-and-some
days or something like that. So you are right. They have been
out of work for a year and a half, and we know from experience
that once you are out over 6 months----
Mr. Mitchell. Right.
The Chairman [continuing]. The chances of you going back to
work diminish rapidly.
Mr. Mitchell. Right, it does. And in my testimony, I show
the chart.
The Chairman. Yes.
Mr. Mitchell. That really represents that and it is pretty
dramatic. Even with the Family Medical Leave at the 12-week
commitment of covering that, even at 12 weeks, the percentage
of going back to work is very low. I like to consider it the
30- to 60- to 90-day rule. That is the window of opportunity
you have to really begin to get the person engaged and return-
to-work planning.
Now, they may not be ready to go back to work, but you are
now in a position to at least start the planning process. And
my colleague here talked about, he did not say when he was
coming back to work. He said the right word: how.
The Chairman. I thought it was ``when.'' How.
Mr. Mitchell. That is the critical part and when a person
has been off that long, they do not know how to get back to
work.
The Chairman. That is right.
Or as I like to say sometimes they just get in a rut. They
just get out, and they get in a rut, and then they----
Mr. Mitchell. Well, here is the Ken Mitchell vernacular:
they get stuck.
The Chairman. Oh, they get--yes, rut, stuck. Right.
Mr. Mitchell. They get stuck. They do not know where to go,
and you know what it is like to be stuck.
The Chairman. Right, exactly.
Mr. Mitchell. You just cannot go anywhere.
The Chairman. Exactly. Yes, Miss Amato.
Ms. Amato. Just one other comment on the SSDI question. I
think you know with SSDI, it is all or none, and what the
employer has learned is that if you offer some carrot, which is
the ability to do a little bit of something in employment.
The Chairman. Yes.
Ms. Amato. Be productive, work a little bit that you are
incentivized. If you are continuing your benefit, whether that
is your private insurance disability benefit if you have that,
then you are not disincentivized from returning to some kind of
employment, and with SSDI, it is all or none.
So having a program that might allow, when they are out,
because they have obviously been out of the workforce 6 months
at least, but creating a program that allows them to transition
to vary part-time with support, with vocational rehabilitation
might be a carrot that would help them come off the rolls if
they knew they were not losing their full SSDI benefit.
Mr. Watjen. Mr. Chairman, I just want to make one
additional comment too.
The Chairman. Yes.
Mr. Watjen. I think we often minimize the psychological
effect of a disabling condition. The physical piece is very
obvious, and we talk endlessly about that.
But there is no doubt immediately when this happens, as we
heard from Eric, there is a sense of, ``What do I do? How do I
even think about the rest of my life?'' And the more we can
transition the discussion from the disability to the ability
side of what someone can do quickly, then you begin to have a
spirit of finding a way to return to work to do the things
necessary to make that happen.
And that shift from disability to ability conversation
needs to happen very early in the process, otherwise it sets
in, to use Ken's term. You get a mindset and you do not begin
to think that way, and you are not going to think about the
ability side and that has to happen very, very early in the
process.
The Chairman. And you do that. Unum does that.
Mr. Watjen. We do, we do.
The Chairman. You do that.
Mr. Watjen. We do because that is where, as Dr. Mitchell
mentioned, those conversations happening days after a disabling
event occurs is so important because as much as anything, you
are beginning to establish that rapport, beginning to create
that set of expectations, beginning to transition the
conversation away from the disability itself to what we can do.
And that is really, that is a huge psychological shift when
that actually occurs, and that has to happen, again, very early
in the process.
That is why not just us, but all of our industry. That is
all part of how we do business, which is get engaged with the
individual very early in the process.
Mr. Mitchell. Senator Harkin, I think there's been----
The Chairman. Yes, go ahead. Sure.
Dr. Mitchell [continuing]. I think there is going to be an
interesting shift over the next years because we are going to
find a different type of person that is working in the
workplace. This has been shown very clearly with cancer where
cancer used to be one of the most significant disabling
conditions for individuals. We are not seeing that now. You are
seeing more people working and going through cancer therapy.
So there is going to be pressure on employers now to make
accommodations, to create transitions, to accommodate that
person who wants and needs to go through their chemotherapy and
still work. That is what is going to be the issue with the
older workforce because the older worker is more inclined,
especially women in their forty-fives and fifties, to develop
breast cancer, a man with prostate cancer, colon cancer. The
treatments today are such that the survival rate is so high and
the treatment may be longer.
The Chairman. Right.
Mr. Mitchell. People are not going to want to be on
disability. They want to work. We are going to see a push on
employers to make adjustments, and I think that will be an
important part of that rethinking, or thinking differently
about staying at work and returning to work in relationship to
these types of issues.
The Chairman. I think in your testimony, if I remember, in
your written testimony you talked about surveys done of people,
they expect to work later on in life. They expect to be
working.
Mr. Mitchell. Exactly, exactly. That is very clear. The
surveys, the research being done on that worker, the Baby
Boomer group is they are expecting not because they may want
to, but they are going to need to extend that workplace, their
work time into their sixty-fives, seventies, maybe into
seventy-fives. And employers are going to want to keep them
because they are a talented group of individuals and resources,
and they are going to have to have benefit programs that comply
with that.
The Chairman. Yes, Miss Amato.
Ms. Amato. Thank you, Senator Harkin.
I am just thinking in terms of engaging with them very
early on with the employees. One of the things employers can do
is really be proactive. We obviously have preventative
strategies, but in terms of offering proactive resources under
the HR. We have a well-within program which includes nurses and
nurse care managers, return-to-work coordinators, and wellness
coordinators.
Basically what that model allows you to do is be available
to the employee, listen to them when they are starting to
express concerns, health concerns. Engage right away. You are
looking at ways that you can modify the workplace. You are
offering solutions if somebody is going out, for instance, for
radiation or chemotherapy. You are creating a flexible day,
compressed workweek. You are doing what you have to do to allow
the employee to stay at work and also you are supporting your
business needs. So there is a model also for employers to
benefit from engaging right away, and if they can create a
structure of support, that helps.
Mr. Buehlmann. From my own personal example, definitely
time and getting it engaged right away is exceedingly
important. It is in my written testimony, but I did not say it
here.
About the first week and a half after I started becoming
aware at Georgetown, I was bored out of my mind. Hospital TV
's, as wonderful as they are getting, daytime television gets a
little boring after a while.
The first day the therapist came in to start working with
me was probably one of the happiest days that I had because it
was an advancement. It was showing that there was movement and
you were going to go forward. And being able to be sort of
ingrained into the inpatient therapy that I had at NRH for such
a long time was huge in my recovery, because you are basically
doing it 24 hours, 7 days a week. Even when you are eating in
your room, even when you are just doing very simple things that
you think, it is part of your life at that point.
The psychological is hugely important because you have to
overcome, ``Why did this happen to me? What is the long-term
effects? What are people going to think?'' those kinds of
things. The therapy, but also the psychological at the same
time is very important, and starting it quickly so that you do
not get stuck in the rut. It is important to try to get the
person out as soon as you can, and make them look like they are
going forward, and there is progress that is going to be
happening, even if it is small.
People would come in and see me that had not seen me for a
couple of weeks. I did not necessarily see the progress, but
they would see the progress because they had not seen me for 3
weeks. Every day there is always a little change that is
occurring and it is important to keep moving forward on that.
The Chairman. OK. We are coming to a close here, but a
couple, three things. One, somehow we--and I do not know what
the Federal Government's role is here, and I am looking for
advice and consultation from all you experts on this--what
should we do to encourage employers and employees to get
disability insurance? Obviously we know it saves the Government
money. The private insurers are more adept at getting people to
return to work and consulting with them earlier. How do we get
more people to carry disability insurance? I am looking for
what we can do. I don't know.
Second, what do we do about SSDI? I don't know. We could
try to collapse the timeframe. There is not that kind of
involvement with SSDI as there is with the private insurers in
terms of getting people early on to motivate them to get back
to work.
You have one suggestion that was made here and we have
wrestled with this a long time, and that is if you are on SSDI
and you are able to go back to work that you don't lose
everything, that you keep something where you don't just fall
off a cliff right away. We have wrestled with that for a long
time. I think there is something there that we can do.
How we, again, get small businesses. Small businesses just
don't have HR departments and things like that where they can
work with employees, and most small businesses they just don't
have that wherewithal. So how do we get them involved in this
process?
There is one thing I did want to say here. I asked my staff
to get this for me. I am surprised how many small businesses
don't know this, but Title 26, Section 44 of the Internal
Revenue Code. We passed this after the ADA back in the 1990s.
Right now, there is a tax credit available to small
businesses. It is a 50 percent expenditure of up to,
``It exceeds $250, but not to exceed $10,250. A
business may take the credit each year. It is a small
business that has $1 million or less in gross receipts,
30 or fewer full-time employees,''
And it is a tax credit. It is an absolute tax credit.
So they can get a tax credit, not a deduction for that, but
a lot of them don't know that. And if it is $500. Well, let us
see if I figure it right. If it costs them $500 to get a credit
for anything over $250 and a half, it would cost them $125 is
what it would cost the business to do that.
That tax credit is there and many times I have talked to
small businesses, come in my office, or I see them someplace,
and they just were not aware of it. And, of course, again, they
do not have HR departments, and they do not have tax
consultants who tell them that. So we have to do a better job
of getting that information out.
We are just making sure when we deal with SSDI, how we have
early intervention programs, as you said, to where we can get
the people early on because we know if they are out for more
than 6 months, they get stuck.
These are all things that we are wrestling with and that is
why this hearing is so vital to hear from you in the private
sector about what you are doing. Now, if you have an answer to
all those questions right now, I would be glad to entertain it.
Mr. Watjen, did you have an answer?
Mr. Watjen. Well, I do not have all the answers actually,
but what I would say is I really do think we should put our
heads together and think about how we all collectively move
down the awareness path. How do we create the awareness?
Because I think whether it is the tax provision you talked
about, whether it is the failure to appreciate it as a business
owner how what you are doing is not just good for your
employees and your business, but actually has a positive impact
on some of the discussions here in Washington more broadly
about how to reduce deficits.
I think it could just go on and on where there are a set of
message points to be made that probably we could do them a
little differently in a little more holistic way and do it a
little bit together because, again, I think a lot of what we
talked about is education. And unless people have that sort of
appreciation either on the individual level for the possibility
these things can happen in your life, or at the employer level,
about how you can actually do these things in a relatively
cost-effective way. And frankly in Washington in the
environment here in terms of how it actually could be good
potentially for the Social Security Administration plans or in
trying to reduce those expenses.
So that whole communication piece and awareness is
probably--I would start with that as the biggest place to me.
We just need to put our heads together following a hearing like
this, and put some definition behind that.
The Chairman. Should we make it a tax credit rather than a
deduction for disability insurance for employers? I do not
know. I thought about it.
Mr. Watjen. Yes.
The Chairman. Obviously, it is going to be a cost to the
Government.
Mr. Watjen. And that is why, at least from my personal
view, I was not promoting anything that was going to cost too
terribly much.
The Chairman. We know the money that it saves.
Mr. Watjen. Absolutely. No, very much so. I think it could
easily be that that discussion is a little easier to have when
there is a better appreciation for how all these pieces connect
in a way that, frankly, is good for everybody: individuals,
employers, those trying to continue to manage here in
Washington, some of the public programs.
Again, we have a little more work, I think, to do to
connect all those dots for people, and then maybe create a
little better atmosphere from which to begin to look for
financial incentives to support that.
The Chairman. I think that is probably true. Mr. Buehlmann,
did you have something? Yes.
Mr. Buehlmann. Using purely my work hat at this point, I
would say there is a Federal set of programs that sort of
mirror what Unum does in some respects in terms of the
protection, and advocacy, and the client assistance programs in
terms of providing advocacy for individuals with disabilities
and helping them, and working with the employers in getting
them back to work.
One of our programs is the Protection and Advocacy for
Beneficiaries of Social Security program, trying to move people
off of SSDI and back to work. People with disabilities want to
work. And so, you need to create sort of the atmosphere where
the employer is talking with the person with the disability in
creating the accommodations, and helping the person transition
back to work.
The Ticket to Work program is one of those things that is
very helpful in terms of ensuring that there is still health
insurance coverage because that is definitely a big concern for
people with disabilities--that they are going to lose their
health insurance coverage in shifting off of the Federal rolls
back to employment and that they may not have the same level of
health coverage.
But I think there is sort of a counterpart. There is a
Federal role in terms of the protection and advocacy and client
assistance programs that sort of mirrors what my colleagues
here are doing at the same time.
The Chairman. Any last thing?
Ms. Amato. Yes, Senator Harkin.
I think what the Government might want to do is create some
off-the-shelf programs that employers, particularly small
employers, can use to kind of guide them in terms of what the
incentives and the value-add to offering coverage or benefits,
what the value-add is for them; so having those kinds of
things.
Also SHRM offers and making them clearly understand what
benefits that SHRM has on their Web and so forth for resources.
And last, perhaps incentives from even the insurance companies
for employers that look to the small employers particularly
that need some help might be beneficial.
The Chairman. How would we get that? Explain that further
because I really want to get to the small employers.
Ms. Amato. Right.
The Chairman. But what could we do to incentivize this, you
say?
Ms. Amato. I think your idea of taxes is certainly one, but
maybe and I am looking to my friend over here in terms of the
insurance companies giving a little incentive to the employers
to consider purchasing insurance for their employees.
If there is an incentivization regarding their tax cost
structure or providing a value-add that once you--based on your
benchmark, that you bring more people to work, showing them
that, and sort of having a tiered approach to something like
that. I do not know if that is possible, but just throwing some
ideas out.
Mr. Watjen. No, it is not. As I mentioned, the engagement
of the small employer in this is much lower than it is for the
large employer, significantly lower.
The Chairman. Right.
Mr. Watjen. And yet on the other hand, when you do have a
chance to sit down with a small employer and talk about how
these can actually be not just good for you and your employees,
actually more important to you and your employees because you
do not have a full HR department.
You do not have resources that actually are aware of how to
help people get back to work at the corporate level. You are
simply on your own because you are maybe the business owner,
you are also wearing the HR hat, and oh, by way, you are doing
something else in the front of the store at different points in
time. So the value-add is actually even greater for the small
employer because they do not have those resources.
This gets back to the awareness. It is difficult to get out
that audience, but we have to think differently about how to do
that because there are very simple products and offerings that
are out there that make it very easy for the small employer. It
is just getting them to act and making them more aware because
they are running a business. So how do you get some time with
them, and grab their attention, and get them engaged in this
discussion? Which is why I always come back to this.
We have a substantial awareness issue out there and maybe
more collectively working together as private and public
sector, and those engaged in all of this. There are ways we can
maybe be a little more aggressive because the time absolutely
is right.
As every speaker has spoken about, these issues are not
going to get any easier for us. They are going to get more
challenging as the population ages, and some of the
demographics that we know that are unfolding are going to
continue to unfold.
The Chairman. Exactly. Yes, Miss Walters.
Ms. Walters. Mr. Chairman, ditto on tax incentives, tax
credits, and safe harbors. To answer your question, how do we
entice small employers to offer short-term disability
coverage?, I go back to the eggshell issue. What I hear a lot
is small business knows enough to know what they do not know,
and it is that concern of, ``I do not know what I can ask about
what you might need. I do not want to violate the ADA, the
FMLA.''
The Chairman. Oh, yes.
Ms. Walters. ``GINA, HIPAA. So I am going to do nothing.''
I think if there was an opportunity to say to small business,
``If you develop an RTW strategy or a stay-at-work strategy,''
and maybe it is through a partnership with Jan, or workforce
investment boards, or SHRM, so that there is some--I do not
want to use ``oversight'' or ``regulation,''--but there is a
partnership in how that program is developed.
And then that small business was told,
``Since you have taken the time to implement this
strategy, if there is a charge or a claim filed against
your company alleging a violation of ADA, FLMA, GINA,
HIPAA, ET cetera, etc., you would be given a safe
harbor. That is, there would be a presumption that you
did not have the intent to discriminate or fail to
accommodate or violate any of these.''
I think that would be a fabulous carrot.
The Chairman. I am going to explore that. That is a good
suggestion.
Ms. Walters. Why, thank you very much.
The Chairman. I am going to look at that.
Ms. Walters. Well then, I am stopping right there.
The Chairman. I am looking at WIA too. I am going to
discuss that because we are trying to reauthorize the Workforce
Investment Act, and this might be something we get to take a
look at there. I like that. Anything else that I should do?
Mr. Buehlmann, first of all, I just have two things. I do
not know you personally. I certainly know your mother very
well, who is a very valuable member of this staff and I am
supposed to note for the record that your mother has recused
herself from working on this hearing because of her
relationship with the witness. OK. I do not know why that is
necessary.
Mr. Buehlmann. She has had a long relationship with the
witness.
The Chairman. Your mother is a very valuable member of this
committee. I also just wanted to let you know of my great
respect for your former employer, Jim Jeffords. Jim and I came
to Congress together, the same year, 1975. He was on the
Education Committee, I wasn't, in the House; this is in the
House of Representatives. But I had been interested, of course,
in disability issues and Jim was interested in early education.
So there evolved out of his committee, I was not on that
committee, the Education of All Handicapped Children's Act,
1975. And so then Congressman Jeffords was very much involved
in that. I played a peripheral role. I was not on the
committee, he was, but he was very central to the passage of
that legislation at that time.
Then we worked together over the years and then found
ourselves both in the Senate, although I got here before he
did, so I was senior. But then working together on the ADA and
all of the issues, and then we worked together in the Senate
when we changed the name of it. We changed it from Education of
All Handicapped Children's Act to IDEA. That is what everyone
knows it now as the Individuals with Disabilities Education
Act, which I think was in 1990, if I am not mistaken. And your
former boss played a very integral role in that, in all the
education bills that we worked on, and helping, and making sure
that people with disabilities were, especially children with
disabilities, were fully integrated into the classrooms of
America.
I have a great deal of fondness for Jim Jeffords and just
sorry about his present condition.
Mr. Buehlmann. It was definitely--I brought a personal
perspective to disability afterwards, but it was a perspective
that I had while working with Senator Jeffords because people
with disabilities and making sure that they were included in
the workforce, and making sure they were included in education
was always a very integral part of our office.
It was something I knew lots about before my personal
experience and sort of my work afterwards, but it was
definitely something that he carried throughout his career here
in the House and the Senate.
The Chairman. Well, I have often said the Congress was a
much better place because of Jim Jeffords. He was a great
gentleman and just an outstanding Senator. Just sorry about his
illness and what has happened to him.
Anyway, I will not dwell on that, but I just wanted you to
know my great respect for your former boss.
Mr. Buehlmann. Thank you.
The Chairman. If there is nothing else to come before the
committee, again, I thank you all very much as I said in the
beginning, for your work in this area, for your continuing
involvement here. And as we move ahead, I hope that my staff
can continue to reach out to you for advice and consultation as
we move ahead in this area.
We will leave the record open for 10 days to allow
additional statements or supplements to be submitted for the
record.
Again, thank you all very much. The committee will stand
adjourned.
[Whereupon, at 11:48 a.m., the hearing was adjourned.]