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Designing a Safety Net for Disabled Employees

Lois, a Senior Clerk Typist exhibits bizarre behavior that upsets her co-workers and results in severely curtailing the office's productivity. Management wanted to fire her. Lois' lawyer insists that management make some reasonable accommodation. When the case found its way to the mediator, he found that neither side could talk to one another without occasioning verbal and emotional fireworks. After individually discussing the facts with the parties, the mediator found that the employee had worked for nine years and nine months. She needed three months to "vest" her pension and, thus, become eligible for the company's Disability Retirement Plan that provided for an annuity of 40 percent of the average of Lois' last three years' salary. In addition, Lois would receive full medical insurance and a term life insurance policy at one and one-half times her present income. Management confided that it would do anything to rid itself of this problem employee. Lois' lawyer acknowledged that her client needed care to treat medically diagnosed schizophrenia. The mediator suggested that the employee work three more months to vest her pension. Both parties agreed. Lois worked three months at home performing her normal clerical duties. Then, she retired. Does this case sound familiar? Wouldn't you want to help someone who is ill by designing a safety net instead terminating their employment? The Americans With Disabilities Act requires an employer to consider a reasonable accommodation for a qualified employee who, with or without reasonable accommodation, can perform the essential functions of the job. Many scholars and practitioners have shared their experiences in designing reasonable accommodations. The literature, however, does not address the issue of what happens when the disabled employee cannot continue to work. This article addresses what happens when the employee cannot perform the essential functions of their jobs. Do you fire them because they are physically or mentally unable to work? Is there a more humane way of releasing such employees with a modicum of dignity? What is possible? Is there a listing of resources to assist those who cannot work? If so, where is such a listing? Many cases resolve because the parties find a dignified way out of a serious predicament by designing a safety net of financial and medical protections. This article addresses the various ways of managing the many types of private and social insurance, retirement plans, medical options and leave practices that a personnel professional considers when an employee cannot continue to work because of a disabling condition. What About Wage Replacement? Workers Compensation Workers Compensation is a form of social insurance in which all employees who become disabled from a work-related cause are automatically entitled to certain benefits as defined by the State's Workers Compensation Act (which differs form state to state). The benefits include: * Medical treatment; * Temporary compensation (partial wage replacement) until the injured employee reaches a plateau of recovery; * Total permanent disability for workers unable to resume any type of work; * Partial permanent disability for employees who able to work but sustained some lasting detrimental effect from the injury or disease. For example, a herniated disc, even when repaired, may render the motion of an arm only 80 percent functional. Therefore, the worker is entitled to wage replacement for the 20 percent loss; * Death and funeral expenses; * Dependency benefits for certain dependent relatives of a deceased worker. In many states, a worker continues to receive major medical and pension coverage when they are receiving Workers Compensation payments. The real problem, however, is that, from initial filing to actual ruling, the Workers Compensation Court award generally takes from two to four years. …