Saturday, April 5, 2014
Revisions to the FECA Manual-Part 1 of 4: Job Offers and Return to Work
OWCP has changed the FECA manual regarding job offers and return to work. The changes were made as a recognition of the concept embodied in the legislative history of the 1916 Act that an “employee is bound to do what work he can.”
The FECA Manual Part Two at 2-0814 now only addresses job offers, temporary light duty assignments and abandonment of employment.
If the claimant cannot return to their date of injury position, the employing agency can make a job offer of light or limited duty.
A job offer may be solicited by a rehabilitation specialist, rehabilitation counselor, staff nurse, field nurse, claims examiner or by the claimant.
Some of the changes included are:
The existing elements of a job offer are still in effect, however a legitimate job offer now requires a work schedule be added.
If the job offer is for a site outside the claimant’s residential area, the employing agency must document that it first searched for suitable employment in the claimant’s geographic area before it settled on a position outside the claimant’s geographic area and must provide this documentation to OWCP.
If the medical evidence substantiates that a gradual return to work is necessary, the job offer must specify the dates of the increased hours corresponding with the claimant's prescribed restrictions.
The employing agency must send a copy of the written job offer to OWCP, along with the medical evidence used as the basis for the job offer (if OWCP does not already have a copy).
Previously, OWCP determined that a job which involved less than four (4) hours of work per day where the claimant had been released to work more than four (4) hours per day would not be suitable. In the new rules, OWCP has determined that employing agencies need flexibility to provide suitable work to claimants. OWCP has made the change that the employing agency may offer a job for fewer hours than the claimant was released to work as long as the job offer is for at least half the total hours. In other words if a claimant was released to work six (6) hours per day, the employing agency can make a job offer of three (3) hours per day and OWCP may find the job offer suitable.
Where less than four (4) hours had previously been determined to be an unsuitable job offer, now a job offer of less than two (2) hours per day and less than 20 hours per pay period will be considered unsuitable.
If the employing agency cannot provide a job offer for the full number of hours the claimant has been released to work, the employing agency must provide OWCP written verification that it is unable to provide a job offer for the full number of hours. If OWCP has this written verification from the employing agency, the job offer can be determined to be suitable.
The new rules indicate that where OWCP is not clear on whether the position offered to the claimant is temporary or permanent; OWCP must contact the employing agency and ask for clarification in writing.
New references for teleworking as a viable option for offering suitable employment have been added. Factors OWCP must consider regarding teleworking are; whether the claimant previously performed teleworking. If the employee had already performed teleworking, then a job offer that involves teleworking should be acceptable.
If the claimant had not previously performed teleworking, the additional factors OWCP must consider are; whether the claimant has an appropriate work space (including any necessary furniture) available. If not, the job offer should include the employing agency’s intention to purchase any equipment deemed necessary, whether the claimant has the necessary technological capacity (internet connectivity, computer, etc.). If not, the job offer should include the employing agency’s intention to purchase any equipment deemed necessary and whether the claimant will be able to perform any necessary training remotely.
A limited referral for vocational rehabilitation services may be necessary if the claimant alleges that any of the above factors of teleworking have not been met. Any refusal to cooperate with the Rehabilitation Counselor assigned to confirm or arrange for the necessary accommodations may result in sanctions.
A job offer which represents seasonal employment will generally be considered unsuitable unless the claimant was a career seasonal or temporary employee when injured. However, in locations where year-round jobs are scarce, a seasonal position may be considered suitable for an employee who previously held a year-round job. In either case, the job must reasonably represent the claimant's wage earning capacity.
A temporary job offer will be considered unsuitable unless the claimant was a temporary employee when injured, and the temporary job reasonably represents the claimant's wage earning capacity. Even if all other conditions are met, a job offer which will terminate in less than 90 days will be considered unsuitable.
The weight of medical evidence must establish that the claimant is physically capable of carrying out any physical requirements of the job. If the claimant has an emotional condition, there may be other requirements that must be met for the position to be deemed suitable (for example, not working in a particular environment).
After assessing the position and determining that it is a suitable offer of employment, OWCP must confirm with the employing agency that the job remains open and available to the claimant. This must be documented in the claimant’s file.
If medical reports in the file document a condition which has arisen or worsened since the compensable injury, and this condition disables the claimant from the offered job, the job will be considered unsuitable (even if the subsequently acquired condition is not work-related), as the claimant must be taken as a whole person. If a non-work-related condition results in work restrictions, those must be considered.
OWCP may need to develop this evidence with the claimant and seek an OWCP directed examination, if necessary, to determine the severity of any such restrictions. (See E.G. and Department of the Interior, Docket No. 11-1730 issued October 14, 2011 http://www.dol.gov/ecab/decisions/2011/Oct/11-1730.htm)
OWCP must then advise the claimant in writing that:
The job offered is considered suitable. OWCP should explain how it determined that the job offer is suitable and identify the medical evidence which represents the weight of medical opinion with respect to the claimant's work capacity.
The job remains open and available for the claimant.
The claimant will be paid compensation for the difference (if any) between the pay of the offered job and the pay of the claimant's date of injury job.
The claimant can still accept the job with no penalty.
The claimant has 30 days from the date of OWCP’s notification letter to either accept the job offer or provide a written explanation of the reason(s) for refusing it. There is no change to a claimant’s “Maggie Moore” rights (notification with 30 days to accept the job offer and if no acceptance, notification with 15 days prior to termination of benefits).
That a claimant who unreasonably refuses an offer of suitable employment is not entitled to any further compensation benefits (with the exception of medical expenses for treatment of the accepted condition). The letter should cite the specific language of §8106 of the FECA ("a partially disabled employee who refuses to seek suitable work, or refuses or neglects to work after suitable work is offered to, procured by, or secured for him, is not entitled to compensation.").
The claimant must also be advised whether relocation expenses will be paid if the job offer is not within the claimant's commuting area.