Tag Archives: Americans with Disabilities Act

September 27, 2017

Job loss due to medical care calendar vs. FMLA calendar

Extending medical leave beyond the FMLA period may be an UN-reasonable accommodation under the ADAAA, according to a recent decision of the US 7th Circuit Court of Appeals. The court wrote: “ADA is an anti-discrimination statue, not a medical-leave entitlement.” And it said that since the purpose of reasonable accommodation is to allow an employee to work, which a medical leave does not do, then a leave does not accomplish the law’s purpose. However, the EEOC opposes the position of the court, and is unlikely to change its view that a long-term leave IS a reasonable accommodation when it is: (a) of specific duration, (b) requested in advance, and (c) likely to result in the employee being able to perform essential job functions upon return.

ATTENTION ALL CLINICIANS and CLAIM PROFESSIONALS: Please notice this one key fact in the case before the court. A guy exhausted his 12 weeks of FMLA leave during the “conservative care” phase of treatment for his back pain. In fact, he had his back surgery on the LAST DAY of his FMLA leave — which was protecting his job!

We really have to think more about the intersection between the calendars of “evidence-based medical care” and job loss. For most of the common musculoskeletal problems (like straightforward back, knee, shoulder and ankle pain for example), the scientific evidence says that the doctor should begin by prescribing simple things like aspirin or motrin, ice packs, physical therapy, and exercise.  Unless there are clear signs of a potentially dangerous or progressive problem, the best thing is to wait for 6 weeks and give the patient’s body time to heal itself naturally.

But maybe we should be keeping our eye on the clock, and monitoring progress more actively during that 6 weeks.  When we see recovery not proceeding as hoped, we may need to ANTICIPATE the need for an orthopedic referral, make the appointment for that 6 week mark, and cancel it if things turn out better so it’s not needed.  If not, we may burn through several weeks before the specialist can be seen.

In my experience, it is more typical to see the initial treating clinician SLOWLY notice the passage of time and realize that conservative care hasn’t cut it.  Then they start talking to the patient about a referral to a specialist for consideration for surgery.  Then, when the surgeon sees the patient, they may talk about surgery and wait for the next appointment before requesting authorization from the payer.  They usually wait for a yes before scheduling the surgery — which is often some weeks in the future.   Maybe somebody ought to do a study of the weeks of time lost in this process.

Or maybe you have a better idea? How do we make sure that people’s FMLA clock doesn’t run out because of an ADMINISTRATIVE delays on OUR end, not medical ones on THEIR end? Our goal is to have them NOT lose their jobs – and right now I’m afraid we are really not paying enough attention to that critically important and NEGATIVE result of an injury/illness.

Read more about the 7th Circuit Court of Appeals decision here: https://www.natlawreview.com/article/ada-not-medical-leave-entitlement-seventh-circuit-declares

November 19, 2015

Early EVENTS influence outcomes: You have power to make good things happen!

Few people realize how important early EVENTS are in determining the eventual outcome of a work disruption due to a health problem, particularly the most common kinds of conditions:   low back pain and other kinds of muscle and joint sprains and strains, depression, and anxiety.

Let’s call this a poor outcome:  a failed medical recovery that results in over-impairment and excessive “disability” accompanied by work absence and loss of employment that could have been avoided.  And let’s call this a good outcome:  the fullest possible medical recovery with the least possible physical or mental impairment and the smallest possible impact on the rhythm of everyday life, including minimal lost work time and continued employment.   Do you agree?

Here’s the exciting “so what” about this news that EVENTS influence outcomes:  all three of the professionals who respond to an individual CAN influence what some of those EVENTS are going to be.  Those three professionals are:  the treating doctor, the workplace supervisor, and the benefit claims handler.  This news means that each of them actually has some POWER to nudge things in a good or bad direction!!

See below for a brief description of why early events are so important, and how the experience of  people destined for lucky or unlucky outcomes differs.  In fact, these ideas are some of the main concepts of the work disability prevention model.  (NOTE:  The scientific articles that support the  evidence-based concepts are briefly noted in parentheses.  Their full literature citations appear in the list of References in our report that recommends the establishment of a nationwide Health & Work Service.)

When a working person’s life is disrupted by a new or changed illness or injury, the first few days and weeks after onset are an especially critical period.  The likelihood of a good long-term outcome is being influenced, either favorably or unfavorably, by some simple things that either do or do not happen during that interval (Bowling 2000; Cornelius et al. 2011; Franklin et al. 2013; Loisel and Anema 2013; Nicholas et al. 2011; Shaw et al. 2013; Waddell and  Burton  2004; Waddell,  Burton,  and  Main  2001).  It  is  the  optimal  window  of  opportunity  to improve outcomes by simultaneously attending to the worker’s basic needs and concerns (Shaw et al. 2013)  as  well  as  by coordinating  the  medical,  functional  restoration,  and  occupational  aspects  of  the situation in a coordinated fashion (Wickizer et al. 2011).

The  way  the  episode  unfolds  over  time  in  all  dimensions — biological,  psychological,  social,  and economic — can have a big impact on the outcome. Events that occur can either mitigate or aggravate existing  risk  factors  in  the  situation,  leading  to  better  or  worse  outcomes.  There  are  usually  many opportunities to actively influence the course of events immediately after onset of a health problem (and  many  fewer  opportunities  later  on),  but  today  there  are  few  resources  devoted  to  finding  and exercising these opportunities.  Most of the current attempts to steer situations to a better outcome are made long after the best opportunities have passed by.

The best opportunity for basic intervention appears to last about 12 weeks or three months (DeWitt 1995; Franklin et al. 2013; Hashemi et al. 1997; Johnson and Fry 2002; Loisel and Anema 2013; Turner et  al.  2008)  although  some  data  shows  it  ending  by  6  months  (Rumack  1987;  Waddell  and  Burton 2004). A modest set of simple services —that embody an immediate, systematic, pro-active, integrated, and multidimensional approach — can mitigate the potentially destructive impact of common injuries, illnesses, and chronic conditions on quality of life among the working population (Burton et al. 2013; Hill et al. 2010; Iles, Wyatt, and Pransky 2012; Kendall et al. 2009; Lagerveld et al. 2012; Loisel and Anema  2013;  McLaren,  Reville,  and  Seabury  2010;  Mitchell  2012;  Nicholas  et  al.  2011;  Shaw  et  al. 2013; Sullivan et al. 2005; Turner et al. 2008; Waddell and Burton 2004; Wickizer et al. 2011).

This new approach will allow people to avoid the kind of adverse secondary consequences of medical conditions that they too often experience today (Institute of Medicine 2001; Dartmouth 2008; Franklin and  Mueller  2015).  Those  consequences  are  not  usually  obvious  until  months  or  years  later,  after unfortunate things have happened. The unlucky ones have received sub-optimal health care, been left with undertreated or iatrogenic impairment, become dependent on opioids, found themselves socially isolated, lost their jobs, withdrawn from the workforce, lost economic independence, and ended up on long-term disability benefits programs or SSDI in order to survive (Darlow 2011; Franklin et al. 2008; Franklin et al. 2014; Franklin and Mueller 2015; Habeck, Hunt, and VanTol 1998; Nguyen et al.)


Figuring out where the opportunity to improve outcomes actually lies will be easier if we first clarify some terms that are often used carelessly or that mean different things to various audiences.

Work Disability vs. Disability
In the world of employment and commercial insurance, the word  “disability” is carelessly used.  In this world, the correct term is often “work disability” –which means absence from or lack of work attributed to a health condition.

According to the ADA, disabilities are impairments affecting major life functions (such as work).  Having a disability need not result in work disability.  This is a core concept embodied in the Americans with Disabilities Act. Similarly, having symptoms or a diagnosis need not (and usually does not) result in work disability.

Medical Recovery vs. Functional Restoration
Medical recovery refers to the resolution (disappearance or remission) of the underlying pathological process. Functional restoration refers to reestablishing the usual rhythm of participation in everyday life including the ability to go about one’s regular daily business: performing necessary tasks and enjoyable activities at home and work, and participating fully in society. Functional restoration often accompanies medical recovery, but not always.  Even when medical recovery is not possible, restoration of function often is.   In some cases, it may require separate and specific professional attention.  Functional restoration may include rehabilitation (broadly defined), the successful use of assistive technology, adaptive equipment, and/or reasonable accommodation in the workplace.

Anticipatory  programs  that  ensure  the  right  things  happen  from  the  start  and  include  early identification of those needing extra support are the simplest and most effective way to prevent later adverse secondary consequences of these conditions. A professional needs to provide the following services throughout the immediate response period (which typically ends with stable RTW or 12 weeks post onset).  These services are not generally available today, especially to lower-wage workers and those who work for small firms:

  • oversee and champion the affected individual’s stay-at-work and return-to-work (SAW/RTW) process until it is successful.
  • conduct a quick initial assessment and planning session that considers the individual’s entire situation, screens for known risks for poor outcomes, helps the individual and/or employer make a  SAW/RTW plan and  support them  in  carrying  it  out;
  • drive towards the best outcome by:
    — expediting and coordinating external medical,  rehabilitative  and  other  kinds  of helping services, including referrals for specialized services as needed to address remediable obstacles in a variety of life domains;
    — facilitating communications among all involved parties, ensuring they get the information they need so everyone has a shared picture of the situation and the goal;
    — taking a problem-solving approach with affected individuals, treating physicians, employers, and payers.

If RTW has not occurred by the time the 12 week period has ended, that should trigger a hand-off  to another professional with broader expertise for a deeper assessment which is likely to reveal the need for a different strategy, revised goals, a new approach, or the involvement of other disciplines.

October 30, 2015

Turning private tragedies into a public concern: job loss after injury or illness

Do you realize that NO professional feels responsible when a working person loses his or her job because of a health problem — neither the doctor, nor the employer, nor the person handling the claim for healthcare, disability, or workers’ compensation benefits?  At most, the professionals may say “that’s a shame” assuming they are even aware it’s happened.  Job loss is often invisible; the person just drops off the radar.  The government insists that employers track workplace injuries and illnesses, hospitalizations and fatalities — but no-one is tracking job loss.  Among the public purposes of the Americans with Disabilities Act is promoting employment of people with disabilities.  The millions of workers now silently disappearing from the workforce due to newly-acquired disabilities deserve more visibility — and more help.

An estimated 2.5 million people leave the workforce each year for health reasons, most frequently due to things like low back pain and other common musculoskeletal conditions, as well as the most common mood disorders of depression and anxiety.  And none of the professionals who are called on to respond when those individuals start having difficulty are being held accountable for making an active effort to help them keep their jobs. Obviously, some people really can’t continue to work (for example those who have a terminal illness or have suffered an incapacitating injury).  But some of those lost jobs COULD have been averted if any of those three professionals had devoted more of their skill and discretionary effort to finding a better solution.

In my opinion, this hole in our social fabric through which people with newly-acquired disabilities are falling has been invisible until now — and is unacceptable.

To put this in perspective, as Western societies have evolved over the centuries, other kinds of private tragedies have become public concerns.   Do you realize that until roughly the 19th century, no one felt responsible when a pregnant woman died in childbirth, or her newborn infant did — which was very common?  “That’s a shame,” people said.  It was each family’s private tragedy.   Today,  several professions, many hospitals, and whole departments within public health agencies in every single state focus on keeping pregnant women healthy, providing prenatal care, assuring a safe childbirth, and proper care of newborns.  Maternal and infant mortality rates are now considered basic indicators of the health of a country’s entire population  — and the adequacy of its public health / health care systems.  In the developed countries, maternal and infant deaths are 50 to a 100 times lower than the rates in still-developing countries.  Here is data from the CIA’s World Factbook.

Pic of Mat Infant Mortality rates 2015-10-30

Wouldn’t it be interesting to see a comparable table showing job loss rates for the countries?  What do you think it would show?   I bet the developing countries are doing less well by comparison — because their social safety nets tend to be weaker.  And I doubt workers that in the US are a 100-fold better off.   I’ve heard that European countries make it much harder to “throw away” unwanted workers.  It is not only important for workers and their families to stay employed.  Every time a worker loses his or her footing in the world of work, our society takes a DOUBLE hit:  we lose an economic contributor AND at the same time we gain another person dependent on taxpayer funded benefits.

I’ve been part of a two-year effort to start thinking seriously about ways to reduce job loss due to illness and injury among U.S. workers while serving as a member of the US Department of Labor’s Stay-at-Work/Return-to-Work (SAW/RTW) Policy Collaborative. This year three of us (economists (David StapletonKevin Hollenbeck, and I) were asked to develop policy papers, each on a specific aspect of the issue.

My task was to think about how to establish accountability for job loss among the professionals who have the best opportunity to influence the outcome.  I felt so LUCKY to be PAID to take the time to explore this topic in depth — it was really fun to put my “thinkatorium” into high gear.  Stimulating conversations with more than 30 experts in various fields and sectors of society helped shape my thinking (thank you all — their names are listed in the report).  The final product is three main recommendations and a set of specific suggestions for action — how to accomplish the recommendations.  I hope you will read my paper to see where this line of inquiry leads you.  I bet you will be surprised — because I was.

On October 22, the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) and Mathematica’s Center for Studying Disability Policy (CSDP) hosted a policy forum to introduce the three policy papers and all of their recommendations. You can view the 90 minute video of the event here.  It includes some very good questions from the audience and subsequent dialogue. All three policy papers are available on Mathematica’s website.

Please consider joining me in transforming these 2.4 million hidden and all-too-private tragedies per year into a public challenge for change.

And before you go — did you notice that the data I cited on maternal and child death rates came from the US Central Intelligence Agency’s INFORMATION WEBSITE???  Who knew?  I just stumbled on it.

Photo announcing policy rec - video of event 2015-10-29

August 12, 2015

Who will address working people’s reasonable concerns when illness or injury disrupt their lives?

What do working people wonder and worry about when their lives (and work) have just been disrupted by a new illness, injury, or a change in a chronic condition?

While creating a course to train doctors how to meet their patient’s needs, we realized we had to know what those needs were.  It seemed obvious that patients would want to know what is wrong with them and what kind of medical care they need.  But beyond those things, we came up with a list of predictable and totally reasonable issues:

How long am I going to be laid up (out of commission)?
How long do I have to take it easy?
When I can go back to doing my usual stuff?
In the meanwhile, what can I still do? What shouldn’t I do?
What can I do to speed my recovery?
If I can’t work, how will we pay our bills next month?
When will life be back to normal? …..if ever?
What does this mean about me?   My future?
What is this going to do to my livelihood?  What will this do to us financially?
Who will help me?  Who can I trust?  Who has my best interests at heart?

I often show this list when I am speaking to groups about how to improve outcomes for people with common health conditions like back pain.  It always rings true with the audience.  After one presentation, an influential executive (in a wheelchair with quadriplegia) told me that she had had all of those concerns immediately upon awakening after her accident.

Here’s my question:   How are people getting these questions and concerns answered — when and by whom?  The standard design of a medical visit (memorized by all physicians during our medical training) DOES NOT include a time for doing it.  There is no sub-heading in our report format called:  Patient Education,  Instruction, and Guidance.  If it is happening, it is spotty at best.

So if most doctors are not answering these questions, who is?   Which of the other professionals who are responsible for responding to life & work disruption in working people IS going to address them?   Unless one of these “experts” does so, the people will have to come up with their own answers.  Yet how many are prepared to do that?   They will come up with their own best guesses (which may be wacky) or may turn to their family, friends, co-worker, neighbor, union steward, or a lawyer for answers (who may or may not give them a bum steer).

What does this mean for you?  If you are committed to better service (and/or want to avoid the trouble caused by bad advice), figure out a way to meet people’s totally reasonable needs for information and advice.   If you are a treating clinician, consider making a revision to your standard visit protocol and report templates by adding that missing section:  Patient Education, Instruction & Guidance.

Another simple idea for healthcare providers, employers or insurers is to create a standard operating procedure to mail out or hand out a brochure.  The 60 Summits Project developed a fact sheet for employees whose health conditions have just started to disrupt their work — and a fact sheet for supervisors on how to manage the situation in the workplace..  Feel free to use these sheets as is, or remove the 60 Summits logo and revise them to suit yourself.  But please do SOMETHING!


August 2, 2015

While I was at the White House …..

I was first bewildered then honored to be invited to a White House reception on July 20 to commemorate the 25th anniversary of the ADA.   The invitation was completely unexpected.  It  arrived by email and in the sender field was “The White House”.  I actually wondered for a moment whether it was spam!  I couldn’t figure out HOW my name had gotten on the list — but I went, of course!   It was certainly an experience to remember.  Here are four of my favorite moments.


1.  Meeting former Senator Lowell Weicker and his wife — and the surprising result of my little good deed

When the man in the wheelchair to whom I had just introduced myself said that he was former Senator Lowell Weicker (from Connecticut), I asked him why he was here.  He said, “I wrote the ADA.”   Some web research after we got home confirmed that fact:  an ADA Legacy website calls him the “Father of the ADA.” He left the Senate before the significantly amended bill he had originated could be enacted into law.  Senator Weicker also said that writing the ADA was one of the two things that he was most proud of in his entire Senate career.   It was especially poignant to hear this from an 84 year old man in a wheelchair, clearly looking back over his life.


About a half hour later, when President Obama started  his remarks, he began by acknowledging the contribution that had been made by various influential ADA big wigs in the room.  Sadly, he never mentioned Senator Weicker.

The next day, I screwed up my courage and sent an email to the White House.  I addressed it to the person who had confirmed our RSVP and arranged our security certification.  Maria’s signature read Associate Director, White House Office of Public Engagement.   The heart of my message read: “I presume that others have alerted you to this issue already, but I believe the President delivered an unintended insult by omission yesterday.   I certainly hope that he apologizes to former Senator Lowell Weicker of Connecticut for failing to publicly acknowledge his presence at the ADA reception yesterday and his enormous contribution as “father” of the original bill that became the ADA.    Personally, I hadn’t been aware of the role Senator Weicker had played, but I just happened to strike up a conversation with him at the event.”

To my ASTONISHMENT, Maria CALLED ME UP a few hours later!  She said they were going to have the President write a letter – and then we had a great chat.  It turns out she is the White House Disability Liaison!   She confirmed that they got my name from the Acting Assistant Secretary of Labor Jennifer Sheehy, in part due to my presentations about the work disability prevention model in various DC forums, and my participation in the Stay-at-Work & Return-to-Work Policy Collaborative sponsored by DOL’s Office of Disability Employment Policy.  Maria also said that they make sure to include some future-oriented people in nostalgic events like anniversaries.  I was finally reassured – my invitation wasn’t a mistake!   And now someone in the actual WHITE HOUSE has heard about our exciting ideas about preventing needless work disability!


2.  Here’s proof that medicine was a better career choice for me than photo-journalism

The crowd started gathering to hear the President speak. I decided to avoid the crowd. I stationed myself to catch a close glimpse of him as he was escorted swiftly out of a private corridor into the East Room.  In the excitement, here’s the best / only photo I got– the backs of the heads of the President and Vice-President!   (By the way, as they walked out, I was suddenly reminded that even super powerful people are plain old human beings. For example, their bodies do not glow, have
no visible aura or anything – and there’s no awesome sound track.)

Backs of heads - POTUS, V-POTUS


3.  The ADA has transformed lives of people with disabilities — but not everywhere

When it came time for the President to speak, he was introduced by a lively young women from Harvard Law School who is both deaf AND blind. She reminded us that much of the world has no ADA. Her African grandmother has been astonished at what has been possible for her here in the US, since no-one in Africa could imagine such a future for a child like her. She also said that at the beginning, Harvard didn’t know if and how they could accommodate her, but that they were willing to see if they could do it together. Now THAT is the attitude I wish we would hear from more employers!

Woman introducing Obama


4.   Looking back while leaving to savor the beauty.

On the walk back down the long hall  to the East Wing exit where we had come in, I snapped a photo of the garden, looking back towards the main White House.  I never dreamed that the most memorable thing about the White House would be its classic beauty.  To my eye, the style of the place evokes the noble yet practical-minded men who founded this country. It also evokes the Age of Enlightenment and the ideas about what it is possible for human beings to be and to become that undergird and sustain this fragile compact with one another that we call a nation. I feel very happy to be part of this continuing American “experiment”.

Garden looking at White House