June 5, 2015

Why aren’t we saying and doing THESE THINGS about the ADA?

I’ve been listening to the prevailing conversation about the Americans with Disabilities Act, as amended (ADA), in workers’ comp and disability benefits circles. Most often it has a negative tone: the ADA imposes obligations and creates complicated legal dances that can get us in trouble unless we do things exactly right. I almost never hear ANYONE in these industries (other than disability rights advocates) talking about what we can do to FULFILL the social purposes for which that law was created!

I am also a member of the US Dept of Labor’s Stay-at-Work and Return-to-Work Policy Collaborative, As a result, I met the EEOC‘s Senior Legal Counsel Aaron Konopasky, PhD, JD.  He opened my eyes to the fact that the ADA now applies MUCH EARLIER and MORE FREQUENTLY in health-related employment disruptions (both workers’ compensation and short / long-disability benefits cases) than has traditionally been thought. (See the mini-white paper Aaron and I co-authored on this issue.)

Seems like one of the key purposes of workers’ comp and disability benefits programs SHOULD BE to help workers who get injured or sick or who lose functional ability over time to KEEP THEIR JOBS / LIVELIHOODS and if needed, FIND NEW WAYS TO EARN A LIVING appropriate for their changed capabilities so they can MAINTAIN THEIR ECONOMIC INDEPENDENCE.  If that is so, then it seems like EMPLOYMENT OUTCOMES should be included in the metrics by which effectiveness / success / value of these programs is measured.   (I don’t see this being done now — do you?)

Now let’s look at the flip side:  bad outcomes.  Worklessness is a very poor outcome of a health health condition — for the affected person, their family, and their community.   Meaningful engagement in productive work and economic self-sufficiency are important features of a good life.  Work disability causes a slow-moving cascade of ever-increasing misfortune. In their book Is Work Good For Your Health & Well-Being?, Drs. Gordon Waddell and Kim Burton reviewed the available evidence.  They showed that worklessness causes a decline in physical and mental health. In addition, we know that it causes social isolation, family stress, and marital break-ups.  And it leads to impoverishment and dependency on benefits.  Get the picture?   Virtually all Americans know  unemployment is bad for people, but few understand that worklessness due to disability is even worse.

So, every time someone loses their job and withdraws from the workforce for a health reason, we should do more than say “oh, that’s too bad for him/her.”  We should look to see whether that loss could have been PREVENTED!  The case should be reported and reviewed for possible evidence of human error, service failure, or program and system inadequacy — the way that every perinatal death and every airplane accident is, and the way that certain hospital-acquired infections, outbreaks of food poisoning and infectious diseases.  It is also the way that employers with well-managed safety programs handle every workplace injury.  Learning from failure is by far the best way to improve preventive services, programs and systems. (But I don’t see this being done now for lost jobs — do you?)

Today, I don’t hear the people in charge of workers’ comp and disability benefits PROGRAMS, and the professionals who manage disability episodes for INDIVIDUALS speaking these intended outcomes aloud on a day to day basis. And I’m not aware of any employers tracking and counting up and holding themselves accountable for how many people lose their jobs, studying why that sad outcome occurred and how to avoid it next time.  But maybe they are doing these things  — and I just don’t happen to hear it.  Let me know.

Every year, there are LOTS of working people who “acquire” disabilities due to a new and evolving injury, illness, or the progress of a chronic condition. When it begins, it is often unclear whether the disability will be temporary, indefinite, or permanent.  But in the meanwhile the health problem is substantially limiting their ability to function in life, including working and earning a living.  Within a few weeks (at most), this triggers the ADA’s employment protections.   People who acquire disabilities vary in their willingness and ability to accept their loss, focus on their remaining capabilities, and re-invent themselves and their future. It’s only natural. Sometimes it seems like the easiest path is to give up.  We all need to start thinking about PRO-ACTIVELY finding ways to provide emotional support, give wise advice and supply practical assistance to help them stay at work and keep being productive.

I know many committed professionals in the trenches who today are doing their best on a one-by-one basis to help people keep their jobs while keeping their company productive at the same time.  Marsha is one of them.  She wrote this to me today:  “It comes down to the cost of doing business and trying to do the right thing.”   Many companies (and employees with acquired disabilities) are not lucky enough to have someone with her commitments and expertise available.  Unless there is someone like Marsha AT the table, the only thing that will be ON the table is the cost of doing business.

So what can we do?

(1) Let’s start tracking employment outcomes to assess the comparative effectiveness and value being delivered by healthcare providers, workers’ compensation and disability benefits programs.
(2) Let’s start tracking and reporting the number of jobs lost due to health conditions among patients, employees and beneficiaries in order to bring these unfortunate outcomes into the sunlight.
(3)  Let’s make a habit of analyzing each lost job to see if it could have prevented and how.
(4)  Let’s explore the idea of a government mandate that a limited set of stay-at-work and return-to-work services (including simple assistive devices, adaptive equipment, and basic assistance with the reasonable accommodations process or finding a new job) be part of any workers’ comp or disability benefits plan. These services should also be included in safety net programs for people who recently lost their jobs due to health problems.

Yes, these things will APPEAR to increase costs a bit — but in the end those costs will be more than compensated for by the continued productive contribution of the person to the original employer, or to the next one — and to our economy / society as a whole.

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