November 2003

Limited DutyDiscussion Draft

Executive Summary

The issue of "limited duty" or "light duty" in the work place is a cause of
much concern for the law enforcement executive. He or she wants the injured worker cared for on one hand, but must fiscally manage their department and deploy their work force efficiently to get the job done. In order to do this, the executive must realize that light duty issues are about: executive leadership, risk management, policy and procedures, essential job functions, a myriad of conflicting laws, performance expectations, tracking and assisting injured employees and returning the employee to full duty. It is also about consistency and accountability of the organization to their employees and the employee's accountability and responsibility to their organization.

The Introduction of this report will help the law enforcement executive in
assessing the preparedness of her/his organization to aggressively address the issues related to employee injuries and illnesses. Some of these questions are presented here. Do policies and procedures exist that clearly articulate your agency's responsibilities to the ill or injured employee, as well as, the employee's responsibility to the organization? Are these policies consistent with the leadership philosophy? Are the policies and procedures legal? Are they enforced consistently/fairly? Is there an organizational infrastructure in place that is both qualified and
sufficiently staffed to manage your leave of absence and return-to-work
programs?

The Managing Injury/Illness follows by focusing on specific issues related to policy and procedures. This section begins with the premise that, "the most valuable resource in any organization is its personnel." To effectively manage this resource, departments must establish policies that clearly define the essential functions of a law enforcement officer. These policies should support the agency's responsibility to hire and retain only those individuals who can perform the essential functions of the job and deliver emergency services. These policies and procedures should describe, as succinctly as possible, how disabilities will be managed. In discussing "fiscal ramifications" and "risk management" issues in the following report, it became obvious that, when well managed, limited duty assignments can be advantageous to both the organization and the employee. However, it should be noted that when a policy is implemented it must be applied consistently.

Too often, managers may be tempted to go "above and beyond" to take care of certain employees (e.g. someone shot in the line of duty), and not others (e.g. the nebulas back injury of a problem employee). This in turn may inadvertently set an unwanted precedent and/or adverse litigation may follow.

The Expectations for Job Performance section covers defining fitness for
duty, evaluating fitness for duty and providing limited duty during
rehabilitation. In general, the authors found that the more detailed the
written description of the essential functions of the job are, the easier it
is for healthcare providers to determine fitness for duty. It also makes it
easier for law enforcement agencies to defend decisions that an officer can or cannot perform in his pr her current position.

The topic of Transitioning Light Duty Employees discusses one of the hardest decisions a department faces. Whether to medically retire or to terminate an injured or ill employee. Decisions regarding this issue are even more critical if that employee is part of the patrol contingent of the
department. It may more dramatically impact the departmental operations, employee morale and the public's perception of the agency. Nevertheless, there comes a time when an employee returns to either a full duty assignment, or remains on light duty, having reached the level of maximum medical improvement (MMI). MMI means the employee's condition will not improve further and they will never be able return to a full duty assignment. The transition options for the employer are: find a non enforcement position within the agency, if qualified; find a non enforcement position in another county/city agency, if qualified; retirement; resignation; or termination. These options are explored in more detail in the attached report.

Lastly, we have provided some definitions for many of the terms surrounding this critical issue of limited duty.

Introduction

The issue of "light duty" in the work place is a cause of much consternation for the law enforcement executive. He or she wants the injured worker cared for on the one hand, but has also to fiscally manage their department and deploy their work force efficiently to the get the job done. In order to do this the executive must realize that: light duty is about policy and procedures; about essential job functions; about a myriad of often conflicting laws; about establishing performance expectations; about tracking and checking in on employees who are injured and making reasonable accommodations for their return to full duty and it is about consistency and accountability.

To determine where your organization is with regards to light duty it is
incumbent to address some or all of the questions presented here.

Increasingly, law enforcement executives are required to operate their
business under a variety of regulations stemming from a multitude of laws
governing the work place. Frequently, common place occurrences raise
difficult questions under several different laws. When an employee requests a leave of absence for an illness or injury, if not properly handled, an employer could face liability under several statutes, including the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA) and Worker's Compensation laws. In addition, employers with a unionized work force may find their situation further complicated by collective bargaining agreements. These same regulations impact the return-to-work process. Unfortunately, working with all of these laws concurrently is like working on a puzzle with a multitude of pieces, but with little idea on how they will all fit together.

It is important to understand the regulations that are involved when the
employee first requests a leave of absence for an injury or illness, before
one is able to critically review the appropriateness of light duty or
determine a "best practice" for such a program.

Therefore, the first critical question you may want to ask is what
multi-track analysis system does your agency utilize when considering all
the relevant laws and bargaining agreements that must be considered in
providing legally required benefits to your employees? And, does your
agency have a process that understands the comparative benefits and benefit installments of the various programs the employee may be eligible for? In other words, what method is utilized to ensure that the employer's rights and responsibilities, as well as those of the employee's are appropriately addressed?

Another important question to ask is do you have the most qualified
personnel in positions and in enough strength to manage your leave of
absence and return-to-work programs? This is not a collateral or part time duty. Agencies should have professional staff with personnel related
expertise to manage their light duty program.

Just as important to ask, does your agency have a method to track and manage the various regulations governing employer and employee rights when considering a return to work program? Such a system must track contacts with treating professionals, full duty or work restrictions, the nature of those restrictions, light duty options and a time line for expected return to full duty?

When inquiring into your agencies ability to track employees who are off
work, due to illness or injury, you should ask, do we incorporate acceptable definitions of injury or illness under the competing regulations of ADA, FMLA or Worker's Compensations laws as well as any bargaining agreements? To be able to appropriately respond to requests for leaves of absence, as well as returning employees with work restrictions, your organization must be aware of the current definitions under these laws.

Another critical question should focus on "essential job functions".
Whether an employee with an injury or illness is able to perform their job depends on a written job description. This written document will not only help determine if leave should be granted, but also when or if the employee can return to full duty. Do all of the positions in your agency have up to date, written job descriptions that adequately cover the essential job functions of positions in your agency?

Another questions to ask is, what rights do you have as the employer to the employee's medical information before granting leave or when returning an employee to work and how is this information being used to respond effectively to the agency and employee needs? Also, what system is in place for meaningful discussions between the employer, the employee and their treating professional(s) and is the system being used?

By addressing the above questions you are now in a better position to
question the effectiveness of what is called a modified, restricted or light
duty program for your organization.

According to William Nigel (Summer 1996, issue of Employment Marketplace), modified, restricted or light duty can save considerable costs related to workers' compensation injuries and claims. In the article he states that "... according to major insurance carriers, injured workers who are in a modified duty program return to work six to ten times faster than those who are not. When a modified duty program is in place there are 17 to 35% fewer injuries claimed and incurred losses are reduced by 25 to 35%".

However, when considering light duty programs, there are several items that should be addressed so savings can be realized. First, these positions should be temporary in nature. Fixed or permanent light duty positions may open the organization up to ADA issues. Second, when faced with an injured employee, an employer should determine the employee's ability to perform the essential job functions of the position upon return to work. This is why written job descriptions mentioned earlier are essential. This allows the employer to ascertain from the treating professional, time lines for recovery and appropriate temporary light duty options.

• What are some of the benefits of light duty assignments to your
  organization? Light duty assignments may help your agency comply with the ADA by considering accommodations and possible shifts in tasks. It may help deter fraudulent claims by requiring the employee to show up for work. And as mentioned earlier, injured workers typically return to work faster according to the insurance industry, thereby reducing costs.
  
  The City of Modesto, California, establishes a positive tone at the
  beginning of their "Early Return to Work" Policy and it is included here as an example:
  
  "... will enable an employee, based upon medical opinion, to
  continue using their valuable knowledge, skills and abilities while they are
  temporarily limited by illness or injury. The ERTW Program will offer an alternative todeterioration of basic skills, loss of self-confidence and the associated difficulty that frequently results from prolonged
  absence from work. [This program is based upon current] medical
  opinion, that limited work activity is, in most cases, therapeutic and can effect a faster recovery for the employee. Employees with industrial or non-industrial illness or injury may be returned to work in transitional work assignments whenever possible ....Medical counseling or
  rehabilitative assistance may be provided to the employee while
  on assignment ...."
  
  As the CEO of your organization, you will want to know how light duty
  assignments in your agency are determined/identified and what
  policies/regulations are in place to describe and monitor this program. Are contracts established between the organization and the returning employee describing the temporary nature of the modified/light duty and with a specific time for his/her expected return to full duty? Who will monitor the employee's progress and is this also spelled out in this contract?
  
  Some employer's have adopted non-job related light duty positions that are completely separate from the job the employee performed prior to his/her injury. The City of Birmingham, Alabama, for example, defines limited duty as an alternate assignment within an employee's current job classification, or assignment in a different job classification, while recovering from an on the job injury. Work assignments are subject to work restrictions determined by the City Physician.
  
  The City of Birmingham Police Department also has "Special Duty" positions. Their policy allows permanent status employees, temporarily unable to perform regular position duties due to non-job related injuries or medical conditions, to work special duty assignments when medically permissible. These are alternate assignments within an employee's current job classification, or an alternate job classification while he/she is
  recovering from this non-job related condition. Special projects, work
  backlog assignments, inventory of supplies and answering phones are among tasks assigned light duty personnel. You may want to discuss the pros and cons of having employees work temporary jobs, completely separate from their prior injury duties, with your return to work manager, as well as with your legal advisors.
  
  Regardless, when assigning light duty jobs, if these duties are more
  desirable than their permanent position, the employee may resist returning to their original job.
  
  Finally, it is advisable that a light duty program have the following
  requirements or components:
  
  
• The employee, while on light duty, will still need to meet
  reasonable performance and productivity standards.
• The employee must realize that the organization has instituted this
  program in part for their benefit and they must work, based upon medical opinion, in the positions you designate.
• Complement your program with educational materials and instruction (newsletters, videos, etc.) on how to avoid injuries and perform tasks safely.
• Decide individual situations on a case by case basis, due to the
  nature of injuries, illness and personality variables.
• Keep in close contact with the injured/ill employee, their treating
  professional and document these contacts.

Create a written contract with the employee that establishes the
nature and extent of the medical restrictions, a timeline for recovery, specific monitoring periods, who will do the monitoring and the temporary duties that the employee will be assigned while recovering from their injury or illness.

Managing Injury/Illness--A Values-Driven Organizational Culture

Beginning with the premise that the most valuable resource in any
organization is its personnel, one of the most important elements in
establishing a strong organizational climate must be a concern for people.

It is also becoming increasingly clear that the climate of an organization is determined by its leadership. That is, what top managers do, and the culture they establish and reinforce, makes a big difference in the way lower-level personnel act. In turn, it affects the way the organization as a whole acts.

For example, the culture of the Baltimore County Police Department is grounded in their acceptance of the organizational values of INTEGRITY, FAIRNESS and SERVICE. In place now for ten years, the core values can be readily found in every brochure, personnel order, general order and operations order issued by the agency-not just stated-but also applied. The
values serve as a focal point for their decision-making internally and
externally.

Absent institutionalized values such as this, the climate of any
organization must at least reflect a shared set of understandings--expectations, really--of how critical issues will be handled. The climate sets the tone for decision-making at all levels and in
all circumstances. One area where this is especially important is personnel relations.

The way in which we address the needs of our people is key to employee satisfaction and, thereby, critical to the success of the organization. This is especially true when an employee is injured on the job or faced with a life challenge brought on by a significant illness, accident, or injury that hinders their ability to work. It can become an emotional issue for the employee due to their personal and financial responsibilities outside the workplace. Short-term or long-term, in these situations, many issues present themselves that will affect both the individual and the agency--and must be managed.

Policies and Procedures

Departments should establish policies that clearly define the essential functions of a police officer. The policies should support the department's responsibility to hire and retain only those people who can perform the essential functions and deliver emergency services. With this as a starting point, agencies must monitor employee injuries and delineate agency obligations. Where some accommodation--like reassigning the essential functions of a job to another employee--may be available in the private sector, the Americans with Disabilities Act does not require that you do so.

F urthermore, the demands of policing present unique challenges that should be adhered to strictly. Failure to do so will create undue hardship on the organization. It can be argued that hiring or retaining people who cannot perform the essential job functions of a law enforcement officer poses a direct threat to the health and safety of our officers. It can also be detrimental to the organization as a whole.

There is no requirement to reassign an employee to another position in order to provide him/her with a job. There simply are not enough positions available to "house" officers for indeterminate periods of time-and we should not create them. Such practices can cripple an agency's ability to perform its central functions of crime control and prevention.

Agencies should establish reasonable policies to assist employees in
returning to regular full-time employment from an illness or injury. The policies should describe as succinctly as possible how disabilities will be managed.

Due to the limited number of extended limited duty assignments in many agencies, some policies assign preference to job-related injuries or illnesses. Whether or not you consider off duty injuries and illnesses as well, guidelines should be established that can reasonably balance both employees' and management concerns. The goal is to return employees to work as quickly and ethically as possible while allowing agencies to fulfill their missions. Many departments also place limitations on the length of limited duty assignments with the expectation that the employee will return
to full duty at some point in the future. In properly managing these cases, injury leave or placement in limited duty assignments should be limited to a cumulative period of time, usually one year (2080 hours, 251-260 days, etc.).

No matter how hard we try to keep our injured workers employed, though, there will be some situations when the employee's disability or illness is so extensive that they are incapable of performing the essential tasks of the job. Because police departments only have a finite number of positions available to them, it may be difficult to carry injured employees indefinitely. In these cases, the employee may be forced to exercise other options, including (1) seeking and being hired for another position for which they are qualified, (2) requesting a medical leave of absence, (3) resigning, or (4) applying for a disability retirement.

Developing specific policies for limited duty assignments is necessary in order to control, and bring consistency to, a most difficult issue. It is this consistency which enables an agency head to manage his/her resources in the most effective and efficient way. Failure to properly manage the limited duty pool will surely have an adverse impact on agency operations and planning.

Responsibilities of Leadership

Leaders have to demonstrate the ability to think strategically. Effective strategic planning demands that leaders establish the necessary administrative controls over police operations. These controls will direct the overall operational and economic performance of an agency. Not to be overly simplistic, but the controls must ensure that adequate numbers of personnel and resources are allocated to meet and sustain the demand for
essential services.

Workforce planning enables an agency to have the right number of people, with the right skills, in the right places, at the right time. Recognizing and understanding certain things about this process will add greater controls and value to an agency's staffing capabilities.

Human resource planning begins with evaluating current staffing levels in relation to the services being provided. Anticipating the future needs of the organization, the leader must then be able to determine the appropriate number of personnel and the skills they will need to meet the agency's objectives. Failure to adequately plan for the correct staffing levels will either hinder your ability to deliver services or break the bank doing it-both negative operational and fiscal consequences.

A number of variables must be evaluated in order to maintain the staffing levels that will meet an organization's needs. Some factors are well known and can be determined with reasonable certainty, such as hiring trends, attrition rates and policing strategies. While not always as finite a measure, the number of employees with injuries and disabilities must also be factored into the planning. An organization can, based on previous history, determine the average number of days lost per year due to injury and factor
that into the workload model. This eliminates the spirals in down time and car set-ups. This only impacts the patrol setting as that is usually the only place a workload model is used. Sick leave, military leave and ILD time can also be factored into the model.

Notwithstanding the number of people unavailable for full duty, the leader must ensure that the agency understands the reasons why they are unavailable-and manage the problems related to the absences. Many agencies will employ simple databases or tables to track those members in off-duty or limited-duty capacities. While illnesses cannot be prevented, for the most part, accidents and injuries can. Soaring worker's compensation costs, from
rising premiums and claims costs, are spurring the smart leaders to invest more efforts into controlling losses through education and prevention. Effective risk management programs and other workplace safety and accident prevention efforts have shown that they can reduce lost workdays due to occupational incidents.

These are all issues for which the leader must have a plan. He/she can no longer simply react to changes in the workforce, but must expect that changes will occur and employ the necessary strategies to manage them successfully. This report will attempt to address the issues associated with managing injuries and illnesses in greater detail and how many agencies have successfully addressed them.

Fiscal Ramifications and Risk Management

Personnel in a limited duty status can have a major impact upon the
financial and staffing resources of an organization. When personnel are in a limited duty assignment, the duties of their regular assignment are left uncovered, or another officer may need to be reassigned to fill the void. In either event, the ability of an organization to effectively provide service is adversely affected when assignments are not staffed.

Clearly, there is an impetus for law enforcement agencies to manage effectively their use of limited or restricted duty assignments. When managed effectively, limited duty assignments are advantageous to both the organization and the employee. The employee is able to recover fully from an extended illness or injury without negatively impacting their finances or benefits. In many instances, if an employee were not able to return to work
in some type of restricted or limited capacity, they would have to remain off work and receive reduced pay under some type of disability plan. In the case of a serious on duty injury this can pose a moral and public relations dilemma for an organization's leadership. By allowing sick and injured personnel, who are able, to return to work in a limited capacity, an organization gains in the accomplishment of some tasks, even though not necessarily those to which the officer is normally assigned.

Well-managed limited duty assignments can be a "win-win" for an organization and its employees. However, anything less than a well managed process may result in legal liability and potential costly litigation by employees who feel their case was handled differently from another or otherwise unfairly.

An optimum limited duty policy will clearly spell out the responsibilities and expectations of both personnel and management, and most importantly, impose a maximum length of time that an employee may remain in a limited duty status. The length of time should be reasonable, but it should not be
infinite. Further, when a policy is implemented, it should be applied
consistently and fairly across the board. While managers may be tempted to go "above and beyond" to take care of an officer who suffers a catastrophic injury in the line of duty, e.g., paralysis as a result of a shooting, the risk is run that the marginal employee with the nebulous "bad back" will demand the same treatment or concessions. While to reasonable people this may be comparing "apples to oranges," it is an unfortunate reality in these
litigious times.

Injury claims and lost time directly impact an agency fiscally in terms of higher workers' compensation rates. For example, the Columbus Division of Police workers' compensation rate for 2003 increased over 1.3% above what was budgeted due to an increase in claims over 2002. In a particularly tight budget year, which most agencies are experiencing, this increase is resulting in less new hires being approved by city management. With no end in sight to tight budgetary times, law enforcement agencies must look to
effective risk management strategies in order to limit the fiscal impact of employee illness and injury.

Risk management is a concept that has been utilized in private industry for several years. Because of increased litigation involving police agencies and the increasing willingness of juries to award large verdicts against police agencies, risk management is now critical for every police agency, regardless of size. Risk management may be described as a plan to deal with
potential incidents that might create legal liability for an agency or the city. In today's litigation-minded world, all law enforcement agencies should treat risk management not as a reaction or a plan but as a philosophy for doing business that is designed to lessen the risks of legal liability in all police settings (Dale Close).

Risk management strategies can be developed and implemented for nearly all aspects of an agency's operation, including management and containment of employee illness and injury. Workers' compensation injuries amount to a substantial expenditure for any department. A self-insured department is going to pay directly for the accidents or injuries of officers (Dale Close).

Workers' compensation claims should be tracked to determine what activities are resulting in injuries. The best way to reduce workers' compensation injuries and claims is to monitor them for designated periods of time (generally, one year) then establish policies to deal with the types of injuries that are frequently being experienced in a particular agency (Dale Close).

The analysis of these injuries should then result in the implementation of additional training or policies to prohibit, restrict, or modify activities or methodology that result in inordinate numbers of injuries, e.g., motor vehicle pursuits. In any event, the efficacy of the activity in terms of the law enforcement function must be weighed against the cost and potential liability of the injuries sustained by an agency's personnel.

An effective risk management strategy of employee injury and illness should consist of at least the following components:

* Reporting and Investigation
* Training
* Employee Wellness Program

An agency should require that all on-duty injuries be reported to a
supervisor. A form should be developed for this specific purpose. The report should specify the date, time, and location of the accident and the extent of the injury. It should also indicate the nature of medical
treatment received and whether time will be lost from work. All work related injuries should be investigated by a supervisor in order to determine and verify the cause of the injury, and to ascertain whether training or equipment could have prevented or mitigated the injury.

Safety review panels can play an important and effective role in the review and investigation of employee injuries. Ideally, a review panel would consist of peers and supervisors who are removed from the actual incident. The panel may then submit a recommendation of whether the employee should receive counseling, training, or identify corrective measures that may need to be taken with respect to the incident. The ultimate goal should be prevention as opposed to punitive.

Training should result from the reporting and investigative process. All
agencies should conduct regular training in high-risk law enforcement
activities, i.e., firearms use, defensive tactics, riot control techniques,
defensive and pursuit driving. Training can and should be tailored to areas and activities that are identified as problematic. Closely tied to training is equipment. Faulty or inadequate equipment also plays a role in employee injuries. While not inexpensive, training and equipment are tangibles that are clearly within the control of the agency to procure and provide. When analyses indicate deficiencies in the areas of training or equipment, they can usually be easily and effectively, if not always inexpensively, addressed by the organization.

A final area of consideration in risk management is "employee wellness."
This deals with the overall health and well being of the individual
employee. Reducing known health risk factors can significantly reduce health problems and subsequent health care costs to an organization. A
comprehensive wellness program is predicated on the idea that living a
healthful lifestyle can be a factor in preventing serious illness and
mitigating the seriousness of injuries. The overall program will provide
direct support and assistance to employees in areas such as nutrition,
weight reduction and control, fitness/exercise regiments, coronary risk
assessment, blood pressure control, etc. Unfortunately wellness programs are not inexpensive and participation is in large part left to the discretion of the individual employee. Absent mandatory fitness standards, there may be little or no incentive for employees to take advantage of a wellness program. Further, it is typically the employee most in need that is also the most reticent to participate. Studies have documented that an individual's overall fitness is directly proportional to the amount of sick leave utilized. For that reason alone, a wellness program should be seriously considered as part of an agency's risk management strategy.

Legal and Operational Considerations

As an organization manages the injuries and illnesses of its employees,
consideration must be given to both the legal and operational aspects of it policies and procedures. Legal considerations include the relationship to collective bargaining agreements, workers compensation and, in some
organizations, pension boards.

Collective Bargaining Agreements

The collective bargaining agreement sets forth the rights and terms between the employer and the agent (union) representing the employees. It also sets forth grievance procedures. If the two parties cannot agree on a particular issue, such as the termination of an employee without just cause, the parties select an arbitrator to resolve the dispute. The collective bargaining agreement typically declares that the arbitrator's decision is final and binding.

Clear roles and responsibilities should be articulated in the collective
bargaining agreements in your organization. Where there are multiple
agreements among various labor groups, consistent language should be used and enforced among all employees. Continual interaction between management and labor is necessary to address the constant changes with Federal and State Laws affecting medical issues.

All medical issues must be clearly defined in an organization's labor
agreements so that employees will be treated with equality and your
organization and the collective bargaining bodies will be working in unison toward similar goals. Issues such as FMLA (Family Medical Leave Act), ADA (Americans with Disabilities Act), and Fitness for Duty evaluation must each be specifically and individually addressed.

Fitness for Duty evaluations are often ordered in complicated and unusual medical situations. These evaluations must have clearly defined conditions under which they will be used and explicit steps to be followed during usage. It is not enough to comply with past practices; policies and procedures should be in writing, reviewed by legal counsel, and agreed to by management and labor representatives.

The intent of collective bargaining legislation is to permit parties to an
arbitrable dispute to move out of court and into arbitration as quickly and easily as possible.

Like that of many cities, the current sick leave policy of the Newark New Jersey Police Department is subject to negotiation. No unilateral changes may be made to the policy without negotiating with the employee unions.

Newark has several different employee bargaining units recognized as the representative of the various titles within the organization. The Fraternal Order of Police represents sworn police officers. The Superior Officers Association represents police supervisors (Sergeants, Lieutenants and Captains). Deputy Chiefs have their own organization. In addition, there are three different unions representing the various civilian titles (Police Aides, Records and Identification Officers etc.) employed by the Department.

All sworn employees generally have the same contractual sick leave policy. The civilian unions have a different sick leave benefit policy.

The Family Medical Leave Act is not a contractual issue. There are both
State and Federal laws that cover this issue. The Federal law is more
generous in that it covers illness for family members while State law does
not. The City of Newark has established a policy on how to comply with the various provisions of both laws.

The Americans with Disabilities Act is not a contractual issue. Newark's
policy regarding how it allows light duty employees to remain indefinitely
may affect the hiring standards if they are challenged. The issue may arise when an otherwise eligible candidate is denied employment as a result of a disability that would prevent full employment. It may be argued that since the Newark Police Department has others who have a similar permanent disability performing the functions of a police officer (or other title) it could make a reasonable accommodation to hire the otherwise disabled eligible.

Worker's Compensation

A close working relationship between the individuals coordinating the
injury/illness activities and the Worker's Compensation ("Worker's Comp") representative is essential. Worker's Comp takes a major interest in returning workers injured on the job (even with limitations) back into constructive employment in your organization. According to major insurance carriers, injured workers who are in light duty programs return to full-duty work six to ten times faster than those who are not. The early return of workers with limitations reduces financial losses for an organization by 25 to 35%.

It is not necessary for an organization to "create jobs" for light duty
employees, but it is necessary for your injury/illness coordinator to be
able to discuss with Worker's Comp what positions your organization has that could be of use for light duty employment. Knowing your company's positions and the specific duties of each is of immeasurable assistance to your Worker's Comp representative.

Worker's Comp covers many specific medical costs, including medical
appointments for on-duty injuries, Functional Capacity studies and
independent medical exams. The financial savings for an organization can be immense. Many light duty programs will also help an organization comply with ADA.

The worker's compensation principle has two elements; 1) Workers benefit from a no-fault system, which enables them to recover in many situations in which civil suits would be unsuccessful and, 2) Employers benefit from limited liability, which means that the limited benefits provided in the worker's compensation statute are the only liability of the employer to its employees.

The Worker's Compensation Act provides a definite process by which an injured employee may obtain medical treatment. The employer is required to provide the worker "such medical, surgical and other treatment and hospital service as shall be necessary to cure and relieve the worker of the effects of the injury". The employer's duty to provide such medical care under the Act is absolute.

Upon hearing the employee's claim, the worker's compensation tribunal is responsible for determining whether an employer is required to pay for the employee's medical treatment. Expenses for treatments that are authorized by the employer are chargeable to the employer. Additionally, if the actual treatment provided is determined to have been reasonable and necessary for the employee's injury then the treatment is compensable and the employer will be liable to the medical provider. This is based upon the employer's absolute duty to pay for compensable treatment. If the employer refuses to pay the medical provider, the medical provider may enforce payment through the Division of Worker's Compensation. The medical provider will have standing to enforce payment if the employee had previously filed a claim. Additionally, the Worker's Compensation Code provides the Division with the
authority to award a fee to a medical provider for treatment provided to an employee.

Worker's compensation within the Newark Police Department is coordinated through the Medical Services Office. The Medical Services Office is responsible for monitoring medical treatment of officers injured on duty. However, an outside vendor who has no incentive to discontinue treatment performs this treatment. While actual data cannot be provided, there is a sense that treatment sometimes is continued beyond the point where it provides a benefit to the patient, or is insufficient to properly treat the patient. The lack of a police surgeon hampers the efforts of the Department to accurately assess the condition of employees. Officers who are medically unfit for full duty are scheduled by the Human Resources Unit to report to commands that can make the best use of there abilities while allowing full
duty officers to perform more demanding duties. The use of light duty
assignments provides a benefit in that otherwise injured employees can
contribute. However, this is tempered by concerns related to ADA claims.

Pension Boards

In several organizations, pension boards have an impact on how injured or ill employees are treated. It is important to know if specific language
exists, which employees are affected, and if there is a sunset date for the
requirements. In Minneapolis, less severely disabled police officers
falling under the "old" pension must be continuously accommodated with a "less hazardous duty" assignment. As an attempt to be fair, all injured/ill employees are accommodated with light duty assignments. Only a small number of employees remain under the "old" pension plan and efforts are being made to phase out these practices to become more aggressive - and less accommodating - in administering an injury/illness program.

In Newark, New Jersey, the Police and Fire Retirement System makes
provisions for sworn personnel to retire early due to accident or injury.
There are several categories of benefits that a member may be entitled to depending on the nature of the injury/illness, whether it is duty related or not, if the retirement is voluntary or requested by the agency, and the
amount of time the member has in the retirement system.

Newark's pension system does not take an active role in determining an
officer's fitness for duty. Only after a pension has been applied for does
the pension system schedule a medical exam and have a hearing to determine the applicant's eligibility for pension benefits.

Many departments, including Newark, could take a more active role in
referring personnel who are determined to be medically unfit and totally and permanently disabled. This could set off a battle to determine if the Newark Police Department has made reasonable accommodations as required under ADA.

Organizational Readiness

Every organization must determine if they are ready to aggressively address the issue of employee injuries and illnesses. If the answer is "no", there is much work to be done. Do policies exist that clearly articulate your organization's intent? Are these polices consistent with the leadership's philosophy? Are these policies and procedures legal? Are these policies and procedures enforced fairly? Is there an organizational infrastructure in place to effectively address any employee's injury or illness at any given time? Finally, are the policies and procedures communicated to, and practiced by, the entire organization? A "no" answer to any of these questions might indicate that improvements must be made to managing injuries and illnesses of your employees.

Administering Injury and Illness Program

Organizations need to take a hard look at who is administering their program and how it is administered. Is there an adequate professional staff dedicated to administer this program? If not, organizations must
immediately get the appropriately trained staff in place.

When an employee reports an injury or illness, are they treated respectfully and professionally? Are all employees treated the same way with respect to how the policies and procedures are enforced? Once an employee is diagnosed with an injury or illness, a lack of follow up can have negative consequences for your program. Especially in large organizations, it is easy for employees to get "lost" in the mix of injured employees. This impacts the effectiveness of the organization as well as the perception that some employees can "milk" an injury or illness if no one pays attention to them. An employee with a questionable injury on light duty for an extended period of time will have a negative impact on other employees and allowing this without aggressive monitoring sets a precedent for future injured employees.

Central versus Decentralized Control

Each organization must maintain control of this process and must consciously determine if control over injuries and illnesses will be handled in a central location or out in the precincts or districts. In Minneapolis, the control is centralized but the responsibility is shared. The Human Resources Unit is primarily responsible for administering the Injured on Duty/Light Duty program and coordinates those efforts throughout the entire department and with the Worker's Compensation Unit, when appropriate. Every injury or illness is reported to HR who tracks and follows up on each incident. Every 30 - 45 days, each injured/ill employee is required to see either their own doctor or the city doctor (depending on the origin of the injury/illness) and provide HR with updated medical documentation. This documentation determines if an employee is fit for duty or if they need continual recovery time and light duty assignments. A confidential, monthly report that tracks each light duty employee is distributed to command staff. It summarizes the injury, indicates if it was work related, and states when the next medical exam is needed. If HR is unsuccessful in getting employees to comply with updated medical documentation, command staff gets involved.

When responsibly administered, the process of following up on injuries and illnesses provides proper validation and documentation to ensure that light duty assignments are used appropriately. When they are not used appropriately, or when there is medical proof that an employee will never be able to perform the essential functions of the position, stronger action must be taken.

Interim Use of Talent

Some organizations will try to accommodate every employee's injury or
illness indefinitely, while other organizations have a defined time that an
employee can be considered light duty. Some organizations that once took a generous approach to accommodating injured/ill employees have transitioned to a more specific, less flexible approach with fixed timelines for rehabilitation. During tough economic times, where organizations count on a fully functioning workforce and cannot afford excessive light duty assignments, more organizations are reviewing their policies and procedures. Several are considering a more stringent approach to managing injuries and illnesses.

In summary, when considering legal and operational components, organizations must remember to follow their leadership but also be willing to take a fresh look at existing policies and procedures. Organizations must develop clear, legally-defensible policies and procedures; consult the appropriate legal staff, management and labor representatives; ensure that professional, well-trained staff administers the program; and that all affected employees are treated in a respectful and consistent manner.

Outside Source--Professional Article

How Chiefs Should Prepare for Nine Liability Risks, Dale H. Close, Legal Advisor, Kansas City, MO, Police Department

Expectations for Job Performance--Defining Fitness for Duty

When an officer's fitness to perform in his or her current position is under consideration, it is critical that the law enforcement agency has written and valid essential functions for each rank. The development of essential functions is important for a variety of reasons, most notably:

* They enable the department to articulate legally sound
criteria used to make employment decisions regarding employees who have physical or mental impairments; and

* They assist treating healthcare providers to make
judgments concerning an officer's fitness for duty by providing information about the physical, mental, and psychological requirements and demands of the officer's job.

The amount of detail provided in the written essential functions varies
among law enforcement agencies. The County of San Diego has determined that there are 13 essential functions that are identical for the ranks of Deputy Sheriff, Sergeant, Lieutenant, Captain and Commander. By comparison, the Austin Police Department (APD) has identified 42 essential functions, in addition to detailing specific equipment used, for just the rank of Officer. There are distinct essential functions detailed for each of the APD's other ranks.

In general, the more detailed the written description of essential
functions, the easier it is for healthcare providers to determine fitness
for duty, and the easier it is for law enforcement agencies to defend
decisions that an officer can or cannot perform in his or her current
position. As an example, the essential function of making an arrest can be described in briefly or in detail, as shown below:

"A police officer must be able to affect a forcible arrest."

Or

"A police officer is required to have the strength, flexibility, and stamina
to physically struggle with people, including wrestling, hitting, punching,
proper use of pressure points, striking with an impact weapon, kicking,
withstanding blows to the head and body and falling to the ground. The
officer must also be able to handcuff a resisting/fighting suspect."

The detailed description provides considerably more information about what is required of an officer in making an arrest than the first statement, and would be more educational to a healthcare provider, arbitrator, or jury. It is important that the essential functions detail not only the physical
requirements of the position, but also the mental and psychological
requirements as well.

Law enforcement agencies can adopt essential functions that have been
developed by other agencies with similar positions, or they can develop
essential functions that are specific to their organization. Agencies that
choose to develop their own are advised to seek legal review during the
process, or to enlist the assistance of a consultant with expertise in the
development of essential functions for law enforcement.

The development of essential functions typically involves the use of a job
analysis questionnaire that is completed by incumbents and their
supervisors. This questionnaire elicits information about the criticality
and time spent on specific job tasks, in addition to knowledge, skills,
abilities, and equipment used to perform the job. Based upon the
information gathered through the job analysis questionnaire, specific duties are classified as either "essential" or "marginal".

In the event that charges are filed against an agency under the Americans
with Disabilities Act, a threshold question will be the definition of and
justification for the essential functions of the position in question. It
is therefore very important that agencies carefully identify essential job
functions and be prepared to defend the manner in which they were developed.

Simply adopting the essential functions of another organization may not be the most desirable way of determining essential functions, and agencies are encouraged to work with a consultant to accomplish this task, if resources permit.

Evaluating Fitness for Duty

State Civil Service laws and/or bargaining agreements often specify how
physical and mental fitness for duty is evaluated when a question arises
about an officer's ability to perform his or her job duties. For example,
civil service law in Texas requires an officer to submit a report from his
or her personal physician, psychologist or psychiatrist to the civil service
commission. If the commission, department head or officer disagrees with this report, the commission shall appoint a three-member board to examine the officer. The board's findings determine the officer's fitness for duty.
(Source: ?143.081, Texas Local Government Code).

As another example, the Suffolk County Police Department addresses the issue of evaluating fitness for duty in their collective bargaining agreement. The agreement establishes the use of an independent medical consulting firm agreed upon by police association and the department. The medical consulting service determines an officer's fitness to perform temporary limited duty or full duty and whether such condition is temporary or permanent in nature.

The Americans with Disabilities Act clearly states that medical examinations of employees must be job-related and consistent with the employer's business needs. It is important that healthcare providers conducting such examinations are provided with the essential functions of the employee's position, so that they are clear about the requirements of the employee's job.

In those situations where an officer is returning from an on or off the job
injury, a statement from the employee's physician is usually sufficient to
indicate whether or not the officer is released to full duty, or whether an
accommodation of restricted duty is indicated.

Physical Fitness for Duty

An injured officer's fitness for duty must be coordinated with their
personal physician, and/or with the agency's staff physician. A "personal
physician" should be defined, in the event that an officer selects an
alternate healthcare provider that is not acceptable to the Department. For example, the San Diego Sheriff's Department specifies that a personal physician means a Doctor of Medicine, a Doctor of Osteopathy, or a Doctor of Chiropractic. The treating physician should be provided with the essential functions of the officer's rank. In addition, the agency should request specific information from the physician about the nature of the injury/illness, prognosis, work restrictions or limitations, estimated length of time the employee may require work in a modified or limited duty capacity and any follow-up treatment or therapy required. The agency should require periodic updates from the treating physician, at least every 30 days. The agency may require a medical evaluation by the staff physician or another physician chosen by the agency, if there is reason to question the treating physician's prognosis or recommendations. Reasons for requiring a second opinion might include modified or limited duty that appears to be excessive, restrictions or limitations that cannot be adequately interpreted or clarified, or if the release for duty appears inconsistent with safety considerations. (Source: IPMA HR Bulletin - June 21, 2002) If an agency does not have a physician on staff, it would be well advised to consider contracting with a healthcare provider specializing in occupational injury.

This approach ensures that the provider not only represents the interests of the agency, but also becomes familiar with the job requirements of the
agency.

Mental/Psychological Fitness for Duty

The International Association of Chiefs of Police (IACP), Police
Psychological Services Section, has adopted guidelines for psychological fitness for duty evaluations (FFDE). These guidelines recommend the qualifications of mental health professionals making these evaluations, along with recommendations about the referral process, the evaluation process, reporting and making recommendations to the agency, and legal considerations. The complete guidelines can be found at www.policepsych.com/fitfor; however, the following are particularly noteworthy:

* The client in a FFDE is the referring agency, and not the officer
referred for evaluation. This should be made clear to all parties before
the evaluation begins.

* Evaluators should avoid any conflict of interest, such as one
created when an agency psychologist conducts a FFDE on an officer that has he or she has previously had a counseling relationship with.

* An FFDE is not a substitute for discipline or supervision. Agencies
should develop procedures that define when a referral for an evaluation is appropriate.

* No FFDE should be conducted without an officer's signed consent.

* An FFDE ideally includes different assessment methods, such as
psychological tests, a clinical interview, a biopsychosocial history, and/or
third party collateral interviews.

* An agency is only entitled to information that is related to the
performance of the officer's essential job functions. The report should
include a clear opinion as to whether the officer is presently fit for
unrestricted duty, fit for duty with time-limited accommodations,
temporarily unfit for duty, or permanently unfit for duty. The report
should provide adequate information to support this determination.

* If an officer is found to be temporarily unfit for duty,
recommendations should be made for appropriate rehabilitation such as
counseling, training, modified job assignment, etc.

The IACP Police Psychological Services Section has developed a sample policy for Fitness for Duty Evaluations, which can be located at the website address listed above.

A. Providing Limited/Modified Duty During
Medical/Psychological Rehabilitation

The benefits of returning injured employees to work as soon as possible in a limited duty capacity have long been recognized. The International
Personnel Management Association (IPMA) reports that "According to major insurance carriers, injured workers who are in a modified duty program return to work six to ten times faster than those who are not." The IPMA also reports that when limited duty programs are in place, employers experience reduced injuries, worker's compensation claims, and fraudulent claims. While limited duty assignments are highly recommended for the reasons noted above, it should be noted that employees cannot be forced to return to limited duty assignments if they are eligible for a leave of absence under the Family and Medical Leave. (Source: IPMA HR Bulletin - June 21, 2002)

The IPMA also points to inherent conflicts in laws and regulations dealing with serious injuries/illness and disabilities. For example, returning an injured employee to work in a limited duty capacity appears on the surface to be congruent with the spirit of providing reasonable accommodations under the ADA. "The resulting problem, however, is a potential conflict with the essential functions of a job. For instance, if lifting is an essential part of the position, by providing light duty, you may have built a case against yourself, by implying the duty really isn't essential." (Source: IPMA HR Bulletin - June 21, 2002) It is for exactly this reason that law enforcement agencies are often reluctant to open the door to "limited duty" assignments for police officers.

The following are examples of how some major cities law enforcement agencies are currently dealing with the issue of limited duty:

* Virginia Beach Police Department clarifies that any
limited duty is temporary in nature. Their policy is clearly titled
"Temporary Limited Duty Policy".

* Dallas Police Department has designated 63 positions
as limited duty that are extended or permanent in nature.

* San Diego Sheriff's Department "maintains no permanent
positions for limited duty personnel". Limited duty assignments are
reviewed every 30 days.

* Fairfax County Police Department states that
"Permanent restricted duty assignments or accommodation agreements shall not be made". Any limited duty assignments may not exceed 12 months or 2080 hours.

* Indianapolis Police Department clarifies that limited
duty "will be temporary, pending the officer's recovery to full duty". An
officer may not be assigned to limited duty for more than 180 days for any single injury.

* Columbus Police Department Chief of Police reviews the
status of all employees who are unable to perform their regular duties for a period of 6 months. The Chief "may order an investigation or may recommend additional leave, leave without pay, additional restricted duty, or termination."

* Houston Police Department provides transitional duty
up to 90 days. If the injury/illness was a result of an "occupational"
injury, additional transitional duty may be approved up to two years.

* St. Louis Police Department provides up to 12
consecutive months to officers who are unable to perform the job duties for which they were hired. "This time period includes limited duty, SI, and/or any personal time accrued".

* Austin Police Department provides an "extended limited
duty" with no specified time limit. Ten full-time assignments are designated as extended limited duty assignments, and officers may request assignment to one of these positions after 1040 hours on limited duty.

* Phoenix Police Department provides for permanent light
duty if an officer is injured in the line of duty. If the officer is injured
off duty they may work in a light duty capacity until they are eligible to
retire.

Providing extended limited duty assignments does assume some risks. As stated earlier in this section, designating officer assignments that do not require all of the essential functions of other assignments, such as the
ability to affect a forcible arrest, may negate that these particular
functions are in fact essential.

Another risk is that if officers with disabilities are restricted to
assignments that are undesirable, it could be a violation of the ADA. In
Cripe vs. City of San Jose, (9th Cir. 2001), officers with neck and back
injuries that prevented them from serving as patrol officers were assigned to non-patrol jobs that were considered "undesirable". In order for an officer to transfer to a "specialized assignment", the officer must have worked as a beat-patrol officer in the previous year. The disabled officers were therefore ineligible for any specialized assignments. The court determined that the ADA "clearly requires that qualified disabled persons be allowed to compete for and accept the available "positions" that they seek to obtain - not simply that such qualified persons be given other "positions" that are less desirable or that they may simply not desire".

Identifying Limited Duty Assignments

The major cities law enforcement agencies have a variety of methods for
assigning officers to limited duty. Some agencies transfer all limited duty
officers to a specific assignment. For example, Houston Police Department temporarily reassigns officers on transitional (limited) duty to the Teleserve Unit. Other agencies permit an officer to work limited duty in their regularly assigned unit if possible, or reassign the officer to
another unit. Factors to be considered when selecting a limited duty assignment include the following:

* The officer's limitations as described by the treating
healthcare provider
* The officer's skills, abilities and experience
* The operational needs of the agency
* The "desirability" of the limited duty assignment.

The "desirability" of the limited duty assignment is important. If a
limited duty assignment is particularly attractive in terms of shift, type
of work, etc., then it may provide a disincentive to return to full duty as
quickly as possible. On the other hand, if officers who become disabled are limited to undesirable positions, this could be seen as a violation of the ADA, as referenced above in Cripe vs. City of San Jose.
Most agencies detail specific limitations on officers who are on limited
duty assignments. These restrictions include the ability to wear a police
uniform, display their badge, carry a concealed weapon, affect a forcible
arrest, operate an emergency vehicle, and engage in off-duty employment.

These limitations help to prevent the officer from being placed in a
position that could put him/her or the public at risk, but also provide an
incentive for the officer to return to full duty.

Performance Expectations While on Limited Duty

An issue that is often overlooked in law enforcement agencies policies and procedures, concerning limited duty, is performance expectations during these assignments. Of the major cities law enforcement agency policies reviewed, only the Virginia Beach Police Department addressed the issue of performance evaluations. Virginia Beach's policy states:
"Performance feedback reports for personnel assigned to the
Support Division for temporary limited duty will be completed by the direct supervisor for periods of assignment of three months or more. The
evaluation period will be limited to the time period the employee was
assigned to temporary limited duty and will address only those duties
performed while on temporary limited duty. Once completed, a copy of the performance feedback report will be forwarded to the employee's parent command and attached to the official report for the full year's
performance." (Source: Virginia Beach Police Department General Order #92.35)

The importance of establishing expectations and evaluating an officer's
performance of these expectations in a limited duty assignment is critical
for a number of reasons. The most obvious reason is simply accountability - the officer is being compensated at his or her regular rate of pay for performing work, and in return, the agency has a reasonable expectation of receiving productive work that is of value to the organization. The officer may not be clear about what is expected of him or her in a new limited duty assignment, and receiving written expectations at the beginning of the assignment will provide clarification. The supervisor may not have clearly thought through what is expected of the officer during a limited duty assignment, and establishing written performance expectations will force the supervisor to do so. Written performance expectations will communicate to the officer that the limited duty assignment is not a time when he or she will be excused from productive work that contributes to the organization.

Finally, it does not excuse an officer's poor performance during limited
duty because there are no written standards against which to measure his or her performance. An officer's established performance standards for his or her full duty assignment are usually of little relevance to his or her limited duty assignment.

Law enforcement agencies are strongly encouraged to follow the example of Virginia Beach in establishing written procedures for performance evaluations during limited duty assignments that are anticipated to last for a specified period of time, such as more than 30 days. These procedures should include the following:

* Written performance standards specific to the assignment are developed and reviewed with the employee at the beginning of
the assignment;

* Performance evaluations are conducted by the limited duty supervisor at specified periods of time, or at the end of the limited duty assignment;

* Unsatisfactory performance is addressed according to the agency's established policies and procedures; and

* The performance evaluation(s) should be forwarded to the officer's supervisor when he or she returns to their regular assignment,
and should be included in the officer's annual performance evaluation.

Transitioning of Light Duty Employees

One of the hardest decisions a department faces is to medically retire or to terminate an injured or ill officer. Decisions regarding this issue are
critical because they affect the operations of the department, employee
morale and the public's perception of the department.

A police department is a business and regardless of its workload and work produced, a police department has to account for its actions to the
governmental agency that controls it. Department are expected to stay within the constraints of its operating budget. An overall review of Police
Departments will readily reveal that the majority of a department's budget is dedicated to human resources in terms of salary, benefits and overtime. Because operating budgets are normally linked to a finite number of sworn positions, law enforcement agencies cannot afford to carry an injured or ill employee on their payrolls for indefinite periods without having an impact on police operations. In cases where a department is hesitant to terminate or retire long-term light duty employees the department may have to pay overtime or hire new employees to fill their vacant positions. This policy may ultimately creates a budget shortage or higher budget requests.

Depending on the size of the department this type of occurrence may not
cause any real hardships, but if the absence is long term, it certainly
becomes an issue. Allowing injured officers to occupy budgeted full duty
positions for an excessive amount of time can hurt the department's ability to perform its central functions, hurt the morale of officers who are capable of fully performing their law enforcement functions and cultivate a culture of "light duty."

There comes a time when an employee on light duty either returns to their full duty assignment or they have to remain on light duty because they have reached the level of maximum medical improvement. If the employee has reached the level of maximum medical improvement it usually means the employee's condition will not improve further and they are unable to return to a full duty assignment. The department must make sure that all steps to rehabilitate the employee have been documented. It is important that the employee understand the procedures and policies of their department concerning light duty assignments and that the employee and the department follow those policies and procedures.

Many police departments have written policies and procedures concerning light duty assignments that can range from one page to numerous pages. Some departments have policies that are very clear and direct regarding exactly what will happen to an injured/ill employee who can no longer perform the essential functions of the job. The Departments without policies are left to deal with each officer on a case-by-case basis and some actually believe that this is best because it offers them discretion. This discretion can become problematic because human nature dictates a sense of responsibility and loyalty in trying to protect of an officer who suffered a severe line-of-duty injury, e.g., paralysis as a result of a shooting, versus the officer with the chronic bad back.
A department that takes care of an officer who suffers a catastrophic injury in the line of duty, while failing to offer the same consideration to the officer with the chronic bad back may create confusion on policies on injured employees. The department may appear to be arbitrary or unreasonable in their decisions and may expose itself to legal action.

If an employee can no longer perform the essential functions of his job,
police administration must decide what to do with this employee. This is a critical transitional period for both the employee and the department. The police administration must decide whether to re-assign the employee to an alternate position or to guide the employee towards termination. This progression not only affects the employee but also the department. If the employee is going to be transitioned, the employee needs to know the options available, and must be granted a reasonable period of time to review those options. Finally, the employee needs to know the consequences of each option. There are several options that might be considered when transitioning an employee.

Transition Options

* Find non-enforcement position within agency, if qualified
* Find non-enforcement position in other county/city agency, if
qualified
* Retirement
* Resignation
* Termination

Transitioning a light duty employee is not just limited to the termination
of the employee. Alternatives can include finding another position within
the department; finding a position in another agency in government;
retirement, which includes disability retirement and regular retirement;
mutual agreed resignation; and termination. Termination is the most drastic step that an employer can take. It is imperative that such action be given careful deliberation and should not be taken until all practical steps towards rehabilitation have been tried and failed. Alternatives to
termination should be considered. It is important to note that there are
issues and consequences with whichever option is taken. Find non-enforcement position within agency, if qualified

Some departments are able to find positions within their agency for
long-term light duty employees where they perform useful and meaningful work. This is particularly true if the employee has particular expertise, which is important to the department. Many employees have been given extensive training and they cannot easily be replaced.

There may be some positions which do not require power of arrest duties and are more administrative in nature. The assignment of a long-term light duty officer to administrative positions would be a benefit to both the department and the officer. Problems could arise if another employee, without special training or expertise, is denied a long-term light duty position and they are part of a protected class, age, gender and race. This could result in a complaint of discrimination by the employee who was turned down a light duty position.

An alternative option, which would allow the light duty employee to stay
within the department, would be to offer a position within the agency,
requiring a change of title. As an example, a police officer could be
offered a position as a radio dispatcher. There are problems when no
positions are available or the department's policy or staffing levels do not
allow for long-term light duty positions.

Additionally, recent events concerning Homeland Security have also changed the way police departments and law enforcement agencies do business. Many departments have developed mobilization plans, which require the activation of all sworn members for deployment in case of emergencies. Having a large number of officers unavailable to be mobilized could create a problem.

Finding positions for long-term light duty officers can impact departments of all sizes, but it is particularly hardest on smaller departments. Smaller departments usually have only a limited number of light duty positions or administrative positions available for short-term light duty employees. Most departments cannot afford to have employees on long-term light duty assignments indefinitely. If the position is administrative in nature and arrest powers are not needed, the department might be criticized for not filling the position with a lower paid civilian employee.

Police departments often create new light duty positions for injured or ill
officers. This practice may have unintended consequences if employees stay in the position too long. If an employee is assigned to a newly created light duty position with no understanding that they are temporary, courts may decide the employee is entitled to ADA protection in the new position.

Additionally, if officers stay in long-term light duty positions for an
extended period of time, the pension system may find that they are not
entitled to a disability retirement. Time limits may vary with each pension
system. If there are no long-term light duty positions in a department, the
department should avoid the creation of new positions. Departments should create only temporary light duty positions to be used only during the convalescence of the employee.

Find non-enforcement position in other county/city agency, if qualified
Departments may be able to find positions for long-term light duty officers in other government agencies, depending on the expertise and experience of the officer. This usually requires a change of title for the officer and there may also be a reduction in salary and benefits. As an example, an officer may be able to perform investigative services for another agency, as long as that position does not require the power of arrest. This option usually requires the officer to agree to the change.

Given the choice between termination and change of positions, most officers would probably agree to change positions. Termination usually results in the loss of the benefits, such as health insurance and pension benefits, which are difficult to replace. Officers vested in their pension system, would in many cases lose time or have it drastically reduced if terminated. Problems arise with this option if, the officer does not agree to be transferred or there are no vacant positions available. Additionally, Civil Service laws, rules or regulations may not permit such transfers.

If the Department assists the employee in finding alternate employment it
helps to promote a positive and favorable image of the Department. It also helps maintain the loyalty and productivity of the remaining members of the Department. Rather than terminate an employee this option may also help minimize the agency's exposure to any litigation if the employee had been terminated.

Retirement

The decision concerning the transition of a long-term light duty employee
can most easily be resolved when the injured employee is eligible to retire and decides to file for regular retirement. If the employee is disabled he may qualify for a disability pension and can file with their pension system. The final decision of whether to grant a disability pension usually rests with the retirement pension board. Hopefully, a disability retirement will be granted. Problems occur when the employee has been turned down for a disability retirement and he/she is ineligible for regular retirement. Some pension systems allow the employer to file a request for disability retirement on behalf of the employee. Employer filing does not always mean an automatic approval for a disability pension. There may be certain consequences that occur if the employee is turned down. It may create a situation where the department can't terminate an employee. If retirement is not an option then an alternative choice should be made, either find a suitable position or terminate.

Resignation

It is always a good strategy to confront resignation directly and speak to
the employee about the issues. Discuss their job in terms of the goals and objectives that are expected of them. Discuss the steps the department has taken to aid in their rehabilitation. If a decision has been made to terminate the employee make sure they understand the serious nature of the situation. There is a difference between voluntary resignation and being terminated.

Being terminated may disqualify them from other public employment. It may reflect negatively when applying for another job. The department may give a negative endorsement for requests for job references. In some departments severance pay outs may be different for employees who voluntary resign as opposed to employees who are terminated. The department's personnel unit should explain all the options available to the employee such as COBRA for health insurance, severance package and unemployment benefits. However, if an employee voluntarily resigns they may not be eligible for unemployment insurance. If the employee believes he has been treated fairly and the Department has been supportive the employee may decide to voluntarily resign.

Termination

Termination depends on numerous factors. Many public employees are protected by constitutional and statutory provisions, civil service systems, and by union contracts. Generally, a government employee cannot be disciplined or terminated without "just cause". There are three limitations placed on the authority of an employer to terminate a public employee. The "just cause" requirement of public sector employment and/or under union collective bargaining agreements. Second, the statutory restrictions placed on terminations related discrimination based on age, sex, race, national origin, disability, or related categories and for retaliation against employees for protected activity. Finally, judicially established limitations from case law concerning employee's rights under a "just cause" employment contract.

Some basic principles have emerged from efforts of arbitrators to determine what constitutes "just cause". The Department's rules and policies should be related to the safe and efficient operation of the department and must have been made known to the employee. Management must adequately and fairly investigate the charges made against the employee before termination. The employee must have been adequately warned beforehand of the consequences of
breaching the rules or policy. Management's response must be corrective in nature and not punitive.

If all forms of reasonable accommodation for employees' disabilities have been considered and proven ineffective or unduly burdensome, employers are under no legal obligation to continue employing disabled workers. The ADA does not prohibit termination of workers who cannot do the essential functions of the jobs they hold or seek, with or without reasonable accommodation.

Employers should follow certain steps when terminating an employee. 1).Careful review of all the facts, analysis of the issues, and a
recommendation prepared by the supervisors involved for review by the agency head.
2). Legal option concerning the legality of the termination should be
obtained from the department's legal unit.
3). The department head should make the final decision.
4). Termination interview with the employee during
which the employee's supervisor should explain that the termination was
based on careful review and represented a consensus of the supervisors
involved.
5). The employee should be given an overview of the positive steps
taken by the department to rehabilitate the employee. They should understand that there was no other acceptable alternative and that the action is justifiable. Employees want to be treated with dignity. The employee must understand that the decision is final. If the employee feels they were treated fairly it is more likely they will accept the decision.

If the employee feels they were treated fairly and given every opportunity, they may conclude that the termination was their own fault. If an employee feels they were treated unfairly, the department's reputation and morale will suffer. The termination will appear to be arbitrary or wrong if the department did not follow policies or procedures. Supervisors should remember that department gossip might get back to the terminated employee. Terminated employees might decide that they are a victim of discrimination, and seek litigation. There are many issues and concerns that effect the police executive's decisions to terminate an employee; some of these are the following;

Contractual Agreements

Employees may also have additional rights because of union and/or
contractual agreements. When a public employee union and a government agency have agreed on procedures for redress of employee grievances, those procedures must be followed. Police executives may have to consult or bargain with union representatives before taking action. Union representative may want to be a part of the process. It may be advisable to have union representative present when meeting with long-term light duty employees, especially when changing an employee's status. Union and/or contractual agreements will impact any decision regarding changing the status of an employee.

Civil Service Laws, Rules and Regulations

Civil Service laws, rules and regulations have been established to protect
public employees from wrongful and arbitrary actions by their employer.
Civil Service system regulates most police departments. Civil Service gives agencies clear guidelines regarding employment termination standards. Civil Service regulations may impact any decision concerning changing the status of an employee. Public employees usually enjoy greater rights than private sector employees. This is especially true concerning issues related to termination. The Civil Service Systems assert that public employees enjoy certain substantive and procedural rights. Civil Service laws, rules and regulations limit the number of reasons that actions concerning termination can be taken. There is usually a greater burden of proof on public sector executives than executives in private industry. Public employees may also enjoy greater rights as their seniority or tenure increases, giving them more protection from adverse actions.

The Civil Service System has been criticized as being excessively protective with respect to employee rights. Public sector employees are allegedly too hard to terminate. If proper procedures are followed and actions documented an employee can be terminated. Civil Service Systems usually require certain procedures be followed before a public employee can be terminated. Executives should consult with their own Civil Service agency before taking action against an employee. It is important that proper procedures are followed.

Most Civil Service agencies require just cause in order to terminate an
employee. They also provide for due process and some form of a hearing in connection with a discharge or termination of an employee. Not all terminations require due process (such as a candidate who fails to meet probationary standards). Civil Service usually requires departments to account for their action and to offer a forum where competing claims may be heard before an impartial decision maker. The question as to when the hearing should take place, before or after termination, is uncertain and confusing.

The Supreme Court in the case of Arnett v. Kennedy sustained the
constitutionality of the federal Lloyd-La Follette Act, which afforded only an informal appeal prior to termination and guaranteed a trial type hearing only after the agency action took effect. In the 1985 Loudermill case the majority of the court concluded that all factors called for some procedure prior to termination. Affording an employee an opportunity to respond prior to termination would impose neither a significant administrative burden nor intolerable delays. In fact, the agency shares the employee's interest in avoiding disruption and erroneous decisions. If the agency perceives a significant hazard in keeping the employee on the job, it can avoid the problem by suspending with pay. The Loudermill case required an opportunity to respond prior to termination, but this does not mean a full dress hearing.

The most the Court would say is that the hearing must occur at a meaningful time. It is not clear how long after termination would be excessive. In one case the hearing took nine months, a delay the Court found consistent with due process, though noting that at some point, a delay in the post-termination hearing would become a constitutional violation.

The Morale of Other Employees

Actions taken by the department may be seen by other members of the
department as being too harsh and may affect the morale of other employees. They may feel that the department is "picking on" an employee. If the employee was injured in the line of duty, their co-workers may feel the department owes the injured employee a long-term position. Co-workers and even outsiders may take an interest in the case. An unfair discharge may cause a job action or a wave of employee discontent. There is also an opposite affect if the department does nothing to employees, who other perceive as faking an injury or illness, and are not carrying their load. This may cause resentment by other hard working officers and a morale problem for the department.

Cost of Replacement

Another concern for the department when deciding to terminate an employee is whether or not they can be easily replaced. Some officers have been given extensive training and have valuable experience. Many departments have recruitment problems and cannot fill vacant positions; are under mandates to cut staffing and personnel costs and are unable to replace terminated employees; or may be under a hiring freeze. It could be more advantageous for the department to find a position for the long-term light duty officer than to recruit and train a new officer.

Civilian vs. Police Officer

Another concern for police executives is that the governmental
administrators they report to may believe police officer positions should
only be positions that require power of arrest. Any other position should be filled with a civilian employee. Many light duty positions are usually
administrative and clerical in nature and can be filled by civilian
employees. Police Officers usually make more money than similar civilian employees. The department may be criticized for having too many long-term light duty officers as opposed to lower paid civilians. It may be difficult for departments to defend keeping long-term light duty sworn officers on payroll.

Conclusion

Organizations in conjunction with their legal advisors must develop clear,
legally defensible policies and procedures to address how to deal with
long-term light duty employees. This can be a very difficult decision and
there are many factors that can affect this decision. The nature of the
injury or illness, whether or not it occurred on duty or off duty, or if it
was a line of duty injury or non-line of duty injury all have an impact on
any decision. Police executives must be aware of the various options
available carefully decide whether or not to medically retire or terminate
an employee. The termination of an employee is the ultimate sanction and should be used sparingly and only after alternate actions have failed. A clearly written policy makes officers aware, up front, of how their injury will be handled and what will happen if they are unable to perform the essential law enforcement functions. Strict adherence to the stated policy will remove any perception of favoritism within the department and assist the department in quickly resolving "light duty" issues.

Limited Duty - Policy Recommendations

The International Personnel Management Association Human Resources Bulletin reports that there is an increased interest in return-to-work programs by employers. The National Council on Compensation Insurance indicates a continued dramatic rise in medical costs. According to a 2001 Mercer Survey, companies saw average work-related losses of $1.72 for every $100 of payroll which is about 10% higher than in 2000. The cost of covering both job-related and non-job-related injuries/illnesses is up, and companies across the Country are