[Senate Hearing 112-335]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 112-335
 
  STAY-AT-WORK AND BACK-TO-WORK STRATEGIES: LESSONS FROM THE PRIVATE 
                                 SECTOR 

=======================================================================

                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                                   ON

EXAMINING STAY-AT-WORK AND BACK-TO-WORK STRATEGIES, FOCUSING ON LESSONS 
                        FROM THE PRIVATE SECTOR

                               __________

                             MARCH 22, 2012

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions
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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                       TOM HARKIN, Iowa, Chairman

BARBARA A. MIKULSKI, Maryland              MICHAEL B. ENZI, Wyoming
JEFF BINGAMAN, New Mexico                  LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington                   RICHARD BURR, North Carolina
BERNARD SANDERS (I), Vermont               JOHNNY ISAKSON, Georgia
ROBERT P. CASEY, JR., Pennsylvania         RAND PAUL, Kentucky
KAY R. HAGAN, North Carolina               ORRIN G. HATCH, Utah
JEFF MERKLEY, Oregon                       JOHN McCAIN, Arizona
AL FRANKEN, Minnesota                      PAT ROBERTS, Kansas
MICHAEL F. BENNET, Colorado                LISA MURKOWSKI, Alaska
SHELDON WHITEHOUSE, Rhode Island           MARK KIRK, Illinois
RICHARD BLUMENTHAL, Connecticut
                                       

                    Daniel E. Smith, Staff Director

                  Pamela Smith, Deputy Staff Director

     Frank Macchiarola, Republican Staff Director and Chief Counsel

                                  (ii)



                            C O N T E N T S

                               __________

                               STATEMENTS

                        THURSDAY, MARCH 22, 2012

                                                                   Page

                           Committee Members

Harkin, Hon. Tom, Chairman, Committee on Health, Education, 
  Labor, and Pensions, opening statement.........................     1
Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee    37
Hagan, Hon. Kay R., a U.S. Senator from the State of North 
  Carolina.......................................................    43

                               Witnesses

Watjen, Thomas R., M.B.A., President and Chief Executive Officer, 
  Unum Group, Chattanooga, TN....................................     4
    Prepared statement...........................................     6
Amato, Karen A., R.N., C.C.M., C.P.D.M., Director, Wellwithin and 
  Corporate Responsibility Programs, SRA International, Inc., 
  Arlington, VA..................................................    10
    Prepared statement...........................................    11
Walters, Christine V., M.A.S., J.D., S.P.H.R., Sole Proprietor, 
  FiveL Company, Westminister, MD................................    17
    Prepared statement...........................................    19
Buehlmann, Eric, J.D., Arlington, VA.............................    23
    Prepared statement...........................................    25
Mitchell, Kenneth, Ph.D., Managing Partner, Work RX Group, Ltd., 
  Worthington, OH................................................    28
    Prepared statement...........................................    30

                                 (iii)

  


                     STAY-AT-WORK AND BACK-TO-WORK

                       STRATEGIES: LESSONS FROM

                          THE PRIVATE SECTOR

                              ----------                              


                        THURSDAY, MARCH 22, 2012

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:15 a.m. in 
Room SD-430, Dirksen Senate Office Building, Hon. Tom Harkin, 
chairman of the committee, presiding.
    Present: Senators Harkin, Alexander, and Hagan.

                  Opening Statement of Senator Harkin

    The Chairman. The Senate Committee on Health, Education, 
Labor, and Pensions will please come to order.
    Our topic today is, ``Stay-at-Work and Return-to-Work 
Strategies: Lessons from the Private Sector.'' This is the 
latest in a series of hearings that we have convened since last 
March--that is a year ago--to explore issues that impact the 
employment of people with disabilities in America.
    Of course, our goal is to boost the labor force 
participation for people with disabilities. To achieve this 
goal, we must both create pathways for people with disabilities 
to join the labor force, but we must also have policies in 
place to help Americans who have disabilities after they enter 
the workforce to get the support they need to stay employed.
    Over the past 4 years, we have seen the devastating impact 
of the economic recession on people with disabilities. 
Thankfully we see, perhaps hopefully, a turnaround, new jobs 
being created each month, the unemployment rate overall has 
decreased. But that has not been the case for people with 
disabilities.
    While the unemployment rate for the general public has 
decreased by a full percentage point from last year February to 
this year, during the same time period, the unemployment rate 
for people with disabilities actually went up. It went up by 
almost half a percentage point from 15.4 to 15.8 percent, 
according to the Bureau of Labor Statistics. Moreover, the 
number of Americans with disabilities participating in the 
labor force has gone down by more than 500,000 workers since 
the recession began in 2008.
    One of the ways to address this stubborn problem of 
unemployment and underemployment of people with disabilities is 
to make sure they do not leave the labor force if they already 
have a job, and to make sure that those who acquire 
disabilities can remain in their job, and that is what this 
hearing is about today.
    We have asked a number of representatives from the private 
sector to share with us strategies to keep people at work or to 
help them return to work. We know that a complex array of 
factors--social, medical, psychological, and workplace 
practicalities--come into play when an adult acquires a 
disability.
    We will hear about the supports that employers can provide 
in terms of accommodations and adaptations to the work 
environment. We will also hear about how employees, employers, 
family members, as well as health and medical professionals can 
work together to keep people in their jobs or return as quickly 
as possible to their jobs.
    I want to point to one concern I hear about very often when 
a person with a disability is returning to work, and that is 
the cost of making accommodations for that individual. Contrary 
to popular belief, the data does not show that. It shows that 
the cost of making workplace accommodations for people who have 
acquired a disability is very low.
    In 2006, the Job Accommodation Network, JAN, conducted a 
survey of almost 1,200 employers and found over 50 percent of 
the workplace accommodations that were needed to have people 
with disabilities hold a job, actually, cost nothing; the rest 
was in the range of $500.
    We look forward to learning more about how these types of 
accommodations and other strategies in the workplace can keep 
people at work who acquire disabilities or help them return to 
work.
    We have a very distinguished panel here today, and I want 
to thank all of them, right now, for being here and testifying, 
and giving good written testimony. I read them all last night 
and they are very good.
    Before I begin, I want to make sure that I leave the record 
open for any opening comments by our Ranking Member, Senator 
Enzi, who I know is on the floor now, so hopefully, he will be 
here after he finishes his duties on the floor.
    The Chairman. Let me introduce our witnesses, and we will 
get right to it. I will go from left to right.
    Mr. Thomas Watjen, the CEO and president of Unum Group, 
serving that since 2007. Under Mr. Watjen's leadership, Unum 
has achieved strong, sustainable, financial results while 
expanding its market leadership position in building a culture 
of responsibility, which has earned the company a spot on 
numerous, ``Best Places to Work'' lists.
    Mr. Watjen joined Provident, a Unum predecessor, in 1994 as 
executive vice president and chief financial officer, was later 
named vice chairman and director. Previously, he was a managing 
director at the investment banking firm of Morgan Stanley and 
Company, a partner with Conning and Company, and worked in 
corporate finance and investments for Aetna Life and Casualty.
    Next, we have Miss Karen Amato, director of Corporate 
Responsibility Programs for SRA International, and is 
responsible for providing leadership, strategic direction, and 
implementation of SRA's integrated in-house disability 
management and transitional work programs. She is a registered 
nurse of 36 years, a certified case manager, and a certified 
professional in disability management.
    Next is Miss Christine Walters, an independent consultant 
at the Five L Company, an author also, specializing in coaching 
employers how to maintain quality employees within their 
company, including employees with disabilities. She is the 
author of ``From Hello to Goodbye: Proactive Tips for 
Maintaining Positive Employee Relations.''
    She has 25 years combined experience in human resources 
administration, management, employment law practice, and 
teaching, and is an expert on developing return-to-work 
programs for employees with disabilities.
    Next, we have Eric Buehlmann, who had a stroke during his 
last semester of law school, while working part-time for U.S. 
Senator Jim Jeffords. Eric's stroke led to paralysis on his 
left side, loss of vision, and some memory and attention 
issues. Following a period of recovery and rehabilitation, Mr. 
Buehlmann was able to return to law school, finish, and return 
to work for Senator Jeffords with the help of necessary 
accommodations.
    Mr. Buehlmann worked for Senator Jeffords for 12 years, 
including a time as acting legislative director, and has since 
gone on to be the deputy executive director for Public Policy 
at the National Disability Rights Network.
    I might also note for the record that Mr. Buehlmann is the 
son of Beth Buehlmann, a very valuable member of our staff here 
on the HELP Committee.
    Finally, we have Dr. Ken Mitchell, the moderator for the 
Burton Blatt Institute at Syracuse University's Employer 
Research Consortium. Over 30 years of experience consulting 
employers on effective strategies to keep people with 
disabilities at work. He is also the managing partner at the 
Work Rx Group, which assists employers of all sizes and 
industries to reduce the impact of injury, illness, and chronic 
disease in their workplace.
    Prior, Dr. Mitchell was the president of the National 
Rehabilitation Planners, and the executive director of the 
International Center for Industry, Labor, and Rehabilitation. 
He was also the vice president of Health and Productivity 
Development at Unum. I did not know that until I just read 
that. I look forward to hearing his testimony also. I look 
forward to all of them.
    I will say at the outset that all of your statements will 
be made a part of the record in their entirety. If you could 
sum up in several minutes or so, I would be most appreciative, 
and then we can get into a discussion.
    Thank you all for being here. Thank you for all your 
leadership in this area for so many years. And as I said, we 
have been having these hearings for about a year now, and we 
continue to try to develop the record, and find out what it is 
that we need to do especially in this area of keeping people 
with disabilities, when they get an onset of disabilities, how 
we keep them in the workforce. People have expertise. They have 
professionalism. It is a shame to lose them out of that 
workforce, and all of you have been involved in that, and I 
thank you for that.
    We will start with you, Mr. Watjen. It is good to see you 
again. Welcome to the committee.

  STATEMENT OF THOMAS R. WATJEN, M.B.A., PRESIDENT AND CHIEF 
         EXECUTIVE OFFICER, UNUM GROUP, CHATTANOOGA, TN

    Mr. Watjen. Good to see you, Chairman, and thank you very 
much to you--and the other members who, I know, will be joining 
us here this morning--for the opportunity to testify today.
    As you pointed out, you have a written testimony, so I will 
keep my comments fairly brief, but maybe start with an 
introduction to our company.
    Unum is actually the leading provider of employee-sponsored 
benefits, both in the United States and the United Kingdom. 
What that means is we work with employers to provide benefits 
to their employees in the workplace that includes disability 
income protection coverage, life insurance, and accident 
coverage. But since the focus of this hearing is obviously on 
disability, I will contain my remarks primarily to our 
disability business.
    To frame that out for you, if I can. In 2011, our U.S. 
operation actually worked with about 60,000 employers to cover 
8.5 million of their employees for disability protection, and 
we paid out about almost $4 billion in benefits to our 
disability customers in the United States in the course of 
2011.
    Just briefly, a couple of points to put our industry in 
perspective. We insure individuals for a broad range of 
disabilities, from temporary to more permanent conditions. The 
benefits typically begin within 1 week to 3 months after a 
disabling event occurs, and 96 percent of our customers are on-
claim for fewer than 2 years.
    The coverage not only replaces income lost due to the 
disability, but also provides support throughout that time they 
are on disability, including return-to-work services, which I 
will come back to in a moment and share with you some of those 
return-to-work services that the individual receives over that 
particular point in time.
    Our goal is a simple one, which is to help the disabled 
stay at work or return to work, if possible, and allow them to 
maintain a lifestyle similar to what they had before actually 
having the disabling condition.
    Let me speak to how that affects both consumers, a little 
bit about what it means for the employers and, frankly, what I 
think has some very positive public policy implications as 
well.
    Starting with consumers, quite frankly, we are always 
surprised at how few people fully understand what their 
exposure to disability can be. In fact, over the course of a 
working lifetime, there is a 33 percent chance that someone 
will become disabled for 6 months or more; a fairly significant 
probability that something like that can happen.
    As you look at the state of America today, as we know, most 
households live paycheck to paycheck, so most American families 
are ill-prepared to deal with the consequences of lost income, 
even for a very, very short period of time. The result is that 
disability can cause a real financial hardship for many 
individuals and their families. Often, the only recourse is to 
draw from our scarce public programs, or maybe in more extreme 
cases, file for bankruptcy which, obviously, is not a good 
outcome.
    Income protection coverage can provide the financial 
support to allow individuals and their families to retain an 
adequate standard of living, along with the assistance needed 
to help them return to work, which as I mentioned earlier, I 
will spend a few more minutes talking about what that 
assistance looks like.
    Employer-sponsored benefits, which is the business that we 
are in, are particularly attractive for the lower and middle 
income workers who are unlikely to have affordable access to 
these sorts of protections outside of the workplace.
    From the employer's point of view, we find that most of our 
employer customers and companies do value the ability to 
provide benefits to their workers in the workplace. It helps 
with recruiting and retaining the right kind of people, and 
therefore is valued. And frankly, it only costs about $20 to 
$30 per person per month to provide that coverage. It is a very 
modest cost. This is something that all employers can provide, 
both large and small employers.
    Just one note on the public sector implications, I do think 
the more we connect with providing this coverage on a private 
basis to Americans, it does have a positive impact on some of 
the resources that are here in Washington.
    According to a study that we commissioned with the Charles 
River Associates, private income protection insurance prevents 
about almost 600,000 families from having to seek public 
assistance, which actually saves the Government about $4.5 to 
$5 billion per year. And I would point out that roughly 30 
percent of the workers in the workplace actually had disability 
insurance, so the other 70 percent do not, which is obviously 
the opportunity for us.
    Let me speak briefly to the assistance we provide, because 
it is more than just a financial assistance. For starters, 
obviously, the financial assistance is important. We provide 
financial protection. We actually insure roughly 60 to 70 
percent of the individual's income so they have something that 
they can live on over the course of their disability condition. 
However, as I said, it is much more than that.
    We find that by connecting very early, and developing a 
very early and open conversation with our customers and the 
physicians that may be involved in the particular case, and the 
employer, that there is a lot more we can bring to helping 
people get back to work by having that three-point set of 
discussions, again, between the individuals, the employer, and 
the attending physician.
    Our primary communication, however, is with the claimant 
who often is looking for help as they do not know where to turn 
through these early contacts, which start as soon as a claim is 
filed, and in some cases, actually before a claim is filed. We 
work to build an open dialog with our customer.
    Through these contacts, we begin to develop a realistic 
plan including the needed support for returning to work. We 
find that most people want to return to work and want help 
doing so. As you might expect, the longer a person is out of 
work due to disability, the less likely they are eventually to 
return to work. Each claim is different and through our early 
contact, we quickly decide what resources and level of support 
is needed to assure that we have the right expertise involved 
and that everyone is working toward a common goal.
    The level of support a claimant requires can vary 
significantly, often it is enough simply to have the claimant 
set up with a very simple return-to-work plan where our ongoing 
involvement is more touching base from time to time to be sure 
that that plan is going as expected.
    For those with greater needs, we partner with the employer, 
the attending physician, and others to support the employee's 
return-to-work goals. This often is a very specific plan which 
might include many different things that we can provide. For 
example, a flexible work schedule in order to facilitate a 
gradual return-to-work program, workplace modification, 
retraining, vocational rehabilitation, use of adaptive 
equipment tailored to address the specific impairment the 
individual is facing. There is a whole host of different things 
that we can bring to bear but, again, it is very specific to 
the specific claim that we are dealing with.
    As you might imagine, this process requires significant, 
specialized resources and our company has, for example, almost 
1,000 professionals supporting this part of our business alone.
    Again, the key to all of this is establishing a very early 
dialog with the individual and providing the support that they 
need. The result is that the vast majority of our claimants 
successfully return to work. And as I said earlier, 96 percent 
of our claimants are on-claim for less than 2 years looking at 
the indication of how quickly they can get back to work.
    I continue to believe there is more that we can do 
together, between the public and private sector. Obviously, we 
play a very, very important role in helping people to get back 
to work and providing services beyond just the financial 
support.
    There is more that we as an industry can do to help with 
that. Education is a big part of that, but it is also being 
sure that we simplify our products, and continue to make them 
more affordable and more accessible to all Americans.
    I look forward to working with the committee further, Mr. 
Chairman, on that and address your questions in the question 
and answer session.
    [The prepared statement of Mr. Watjen follows:]
             Prepared Statement of Thomas R. Watjen, M.B.A.
                              introduction
    Mr. Chairman, members of the committee, thank you for the 
opportunity to testify before you today. Unum employs approximately 
10,000 people with major operations in Tennessee, Maine, Massachusetts 
and South Carolina. We are a market leader in employer-sponsored 
disability, life, critical illness, and accident protection with more 
than 160 years experience.
    Although as noted Unum provides an array of workplace benefits, 
given the subject of this hearing, my comments today will address 
disability income protection only. In the United States, we provide our 
disability products to approximately 60,000 companies--from Fortune 500 
companies to small businesses--protecting more than 8.5 million people 
and their families. In 2011, we paid our U.S. customers approximately 
$3.8 billion in disability benefits alone.
    The committee's focus today on the private income protection 
industry is very important because it helps highlight how surprisingly 
common a work limiting illness or injury is and how to minimize the 
impact when this occurs.
    Income protection insurance policies generally replace about 60 
percent of a person's income should he or she become unable to work due 
to injury or illness. Typically payment begins within a week or two 
after someone leaves his or her job for short-term disability claims 
and within 3-6 months for long-term disability claims. A key component 
of income protection insurance is the immediate assistance provided by 
experienced specialists, which reduces the impact of disability and 
maximizes the chances of someone returning to work. Approximately 96 
percent of our customers are on claim for fewer than 2 years.
    I will focus on three main points in my testimony today. First, the 
value of income protection insurance to individuals, employers and the 
Government. Second, the approach the private sector takes in assisting 
someone when they become disabled. Third, the opportunities the private 
and public sector have to work together to expand these important 
protections.
              value of private income protection coverage
Consumers
    Sixty-one percent of Americans live paycheck to paycheck. At the 
same time, few understand that the average worker has a one in three 
chance of becoming disabled for 6 months or more during his or her 
working life. Despite this statistic, most Americans are unprepared for 
the consequences of losing an income even for a short period of time. 
The result is that a disability can cause real financial hardship for 
many individuals and their families, and often their only recourse is 
to draw upon scarce public safety net programs that may only replace a 
modest portion of their earnings.
    Income protection insurance can provide the financial resources to 
allow individuals and their families to retain an adequate standard of 
living. This coverage also offers important benefits beyond income 
replacement. People covered by this protection enjoy the benefit of 
many support services, including experts whose goal it is to help 
claimants understand and deal with the onset of disability. This 
support in turn maximizes the potential for someone to return to work.
Employers
    There is considerable value for employers who make income 
protection coverage available to their employees, particularly with 
regard to workforce recruitment and retention. Studies consistently 
demonstrate that employees care about these types of benefits and are 
more loyal to companies that offer them.
    The workplace is an effective way to ensure consumers can access, 
afford and understand the need for income protection. Ninety percent of 
income protection insurance is sold through the workplace, providing 
access to a broad range of employees at differing income levels. Income 
protection insurance is affordable with premiums often as low as just 
$20 to $30 per month. Most of the time, income protection premiums are 
paid by the employer or the cost is shared with the employee. The 
workplace also serves as an important place for employers to educate 
consumers about the need for this type of financial protection, 
particularly given the trusting relationship that most employees share 
with their employers.
    Private income protection insurers also help employers better 
manage their business by maximizing productivity and minimizing 
absence. Studies show that disabilities can cost employers upwards of 
15 percent of payroll. By increasing the potential for returning to 
work after illness or injury, employers can save on the expense of 
recruiting and training replacements, and can reduce health care costs 
as well.
    Unum often collaborates with employers to help them understand and 
manage the impacts to their business of lost time due to disability. 
Small employers especially can benefit from the expertise offered by 
companies like Unum because they are less likely than larger employers 
to have experience in dealing with employees who become disabled.
The Government
    Individuals with private income protection coverage that become 
disabled are much less likely to require support through government 
assistance programs, greatly benefiting taxpayers.
    Last year, Unum commissioned a study by Charles River Associates to 
assess the value of employee benefits with a specific focus on 
disability protection provided in the workplace. The study found that 
the industry saves taxpayers up to $4.5 billion per year by eliminating 
the need to rely on public assistance programs such as Temporary 
Assistance for Needy Families, the Supplemental Nutrition Assistance 
Program, and other related welfare programs. The industry prevents 
575,000 families from becoming impoverished. The study shows that 
poverty among working adults who become disabled during their working 
careers could be virtually eliminated if all workers had some form of 
standard employer-sponsored income protection insurance.
    Private income protection insurance offers access to resources that 
help get people back into the labor force. This in turn has a positive 
impact on public sector disability-related programs.
            private sector assistance to disabled employees
    Private income protection provides a disabled worker with about 60 
percent of his or her regular income. With this assistance, the 
employee can maintain a basic standard of living while focusing on 
recovering, and then returning to work. In most cases, covered 
employees who become disabled are able to return to work within 2 
years, in part because of our efforts.
    As soon as a disabled employee files a claim, Unum begins 
discussions with that employee and his or her medical provider, as well 
as the employer. By far the most important communication, however, is 
with the employee directly. Unum claims professionals are trained to 
have collaborative dialogs with claimants that include understanding 
the motivational aspects related to returning to work and the 
anticipated length of a person's recovery. The world of disability is 
unchartered territory for most employees, and Unum guides them through 
this difficult landscape by building a trusting and supportive 
relationship with the common goal of helping the employee recover and 
return to work.
    Through this approach we can proactively triage claims and 
effectively direct appropriate professional resources on an individual 
basis. At Unum we have almost 1,000 physicians, nurses, and vocational 
rehabilitation consultants and claims specialists in place to provide 
this assistance. When hiring and training our professionals, we pay 
special attention to ensure they reflect our high standards of customer 
service.
    For example, we have developed a detailed hiring profile which 
allows us to target the most appropriately skilled and suitable 
candidates for claims handling positions. Once we hire a suitable 
candidate, we build expertise through 10 weeks of comprehensive 
classroom learning. Upon completion of this training, each claims 
specialist is assigned an experienced mentor for another 18 months 
during which time they undergo advanced skill training. We also provide 
ongoing career development and training focused on all important 
elements of the claim review process, including medical, vocational, 
regulatory, and customer relationships. In sum, our employees receive 
intensive initial and ongoing training to ensure they are as prepared 
as possible to support the customer in their time of need.
    Early intervention and timely communications are critical to 
successful return-to-work outcomes. The frequency and the nature of 
these conversations are examples of the industry's evolution as well as 
our own focus on customer service. In recent years, changes have been 
driven in part due to advances in adaptive technology, as well as a 
focus on accommodation required by legislation such as the Americans 
with Disabilities Act.
    The level of support a claimant requires can vary significantly 
based on need. Often, the only professional resource that is needed to 
assist a claimant in their desire to return to work is communication 
between the claimant and the claims representative. In many cases, it 
is enough to help him or her establish a return-to-work plan, then 
periodically followup with the claimant as they recover. When 
appropriate, our physicians speak with the claimant's medical provider 
and discuss their potential work capacity. In other instances, we help, 
with the involvement of the employer, to create job modifications such 
as a change in working conditions and ergonomic improvements as well as 
rehabilitation and career assistance.
    The consistent rise in healthcare costs has also contributed to the 
development of comprehensive health and productivity strategies. Health 
plans, prevention programs and disability insurers can no longer afford 
to exist in silos. High incidents of disability often result in higher 
health care costs and reduced productivity. As a result, if an employer 
can decrease the frequency and length of disability claims, it will 
also have an opportunity to reduce medical costs.
    Reducing disability claim incidence and length can include 
strategies that may begin before an employee leaves the workforce as 
well as return-to-work efforts for those who are absent from work. 
Effective strategies include condition management, absence management, 
and disability management.
    Condition management keeps employees with disabilities on the job. 
Typically, these services are provided to employees who have not yet 
filed a claim and continue to work, but whose future attendance and/or 
job performance may be at risk. In some cases, services are designed 
not only to help the employee remain in their occupation, but to help 
the employee consider a job change with the same employer if 
appropriate. Examples of these types of services involve working with 
the employer's human resources department or front line managers by 
providing training and reasonable accommodations.
    Absence management includes developing transitional return to work 
and stay-at-work plans. These programs are designed to gradually 
transition a worker from a less than full capacity work status to a 
full duty work status by modifying tasks and/or hours so that he is 
able to incrementally heal and increase productivity during the 
recovery process from an illness or injury.
    With regard to disability management, for those employees who do 
experience an absence from work, Unum specializes in assisting an 
individual's rehabilitation, when appropriate, by helping them develop 
a return-to-work plan. Factors considered in developing the plan 
include age, type of disability, work history, education, job 
preferences, and return-to-work opportunities.
    We use many tools to develop individually tailored return-to-work 
plans, including:

     Regular telephone contact with the individual needing the 
services by one of Unum's claim representatives and/or by one of Unum's 
certified rehabilitation counselors;
     A detailed job analysis of the tasks the individual is or 
was performing;
     A functional capacity evaluation designed to determine the 
level of recovery/medical improvement, in order to better understand 
which work tasks the employee is capable of performing;
     Medical records and focused return-to-work planning 
discussions with the employee's treating medical provider; and
     Partnering with State-based job placement and vocational 
assistance programs.

    A customized support plan may include the following services:

     Coordination with the employer to help the employee return 
to work;
     Identification of adaptive equipment or job accommodations 
that could enable the employee to resume job duties;
     A vocational evaluation to determine how the employee's 
disability may affect his or her employment options;
     Job placement services;
     Resume preparation; and
     Job-seeking skills training.

    As part of the return-to-work plan, Unum provides a designated 
vocational professional to help coordinate all of its aspects. Often 
modifications that have been agreed to by the employer, employee and 
Unum before implementation need to be monitored and adjusted to help 
ensure a successful re-integration into the workforce.
    It is also important to note that our insurance contracts generally 
contain additional benefit provisions which can directly assist a 
successful return to the workforce. Examples of these provisions 
include providing enhanced financial support to employees returning to 
work on a gradual basis, dependent care benefits, immediate resumption 
of benefits if there is a recurrence of disability within a specified 
timeframe, and educational/training benefits. All of these contractual 
features are designed specifically to give insured employees support 
beyond direct vocational assistance.
opportunities for public/private partnership in dealing with disability 

                            in the workforce
    The private income protection insurance industry and the Government 
have opportunities to work together on the shared objective of making 
financial protection more accessible and affordable for American 
workers.
    Government can play an important role by helping to raise awareness 
with consumers, employers, and others about the risks and consequences 
of disability. The evolution of the private sector tracks advances in 
public policy as well. Most notably, the Americans with Disabilities 
Act and the 2008 amendments have prompted employers to move beyond 
providing reasonable accommodations to programs and policies that 
involve a more interactive process. More employers are offering 
workplace flexibility through transitional return to work and are 
refraining from inflexible termination policies in order to ensure that 
they do not create the unfortunate situation in which loss of 
employment occurs without proper consideration of the insured's 
condition.
    In addition, the industry must continue to do its part by helping 
to educate consumers about the need for coverage but also continuing to 
seek ways to simplify our products and make these more affordable to 
all Americans.
                               conclusion
    Mr. Chairman, let me conclude by reemphasizing the crucial role 
that private income protection insurers serve in protecting American 
families and maximizing the potential for someone in the workforce who 
experiences a work limiting illness or injury to return to their job.
    Although each case is unique, and while there is no one solution 
that works for everyone, we have found that the best recipe for 
successful return to work is a committed insurer with superior claims 
handling and support, an employer committed to its workforce, and an 
individual motivated to return to productivity.
    Too few Americans are covered by private income protection. A 
worker is three times more likely to become disabled than to die before 
retirement, yet is much more likely to have life insurance than income 
protection insurance. Our experience is that the lack of awareness of 
the risk of disability and the affordable ways to insure against the 
risk are the biggest impediments to more Americans being protected. 
That is why this hearing is so important.
    I would be happy to answer any questions the committee may have.

    The Chairman. Thank you very much, Mr. Watjen. I am going 
to have some questions along why it is 70 percent.
    Mr. Watjen. Yes.
    The Chairman. But anyway, we will get to that.
    Miss Amato, welcome. And again, as I said, I will not 
repeat this any longer, your statements will be made a part of 
the record. And again, just in your own words, sum it up. 
Appreciate it.
    Ms. Amato. Good morning.
    The Chairman. Thank you.

STATEMENT OF KAREN A. AMATO, R.N., C.C.M., C.P.D.M., DIRECTOR, 
     WELLWITHIN AND CORPORATE RESPONSIBILITY PROGRAMS, SRA 
               INTERNATIONAL, INC., ARLINGTON, VA

    Ms. Amato. Good morning Mr. Chairman and Ranking Member 
Enzi. My name is Karen Amato, and I am the director of 
Integrated Disability Management, Safety and Wellness Programs 
for SRA International based in Fairfax, VA. SRA International 
employs about 6,500 employees located in more than 50 locations 
around the world. I have over 21 years of experience managing 
disability and return-to-work programs, as well as 36 years as 
a registered nurse.
    I thank you for the opportunity to testify on employer 
approaches to disability management and return-to-work 
strategies. I appear before you today on behalf of the Society 
of Human Resource Management or SHRM, which I have been a 
member since 2008, and we are pleased to have Senator Enzi, a 
SHRM member, as well.
    My comments will address my experience with large employers 
that have faced challenges and successes, keeping and bringing 
employees with disabilities back into the workplace. At the 
outset, let me note that SHRM and its members have a long 
tradition of working to increase employment opportunities with 
people with disabilities.
    Since 2006, SHRM has enjoyed a partnership with the 
Department of Labor's Office of Disability Employment Policy. 
SHRM was also pleased to include among employer and disability 
associations that collaborated with you, Senator Harkin, on 
crafting the Americans with Disabilities Amendments Act, which 
was signed into law by President Bush in 2008. Chairman Harkin, 
we thank you for including SHRM in the legislative process that 
produced the ADA Amendments Act.
    In my experience, and particularly in light of the expanded 
definition we now have for disability under the ADA Amendments 
Act, there are several successful strategies that some large 
employers have incorporated into effective disability 
management programs that I would like to describe.
    First, when employers engage an employee early in the 
return-to-work process, it can allow the organization to 
simultaneously meet their business needs and also reduce the 
financial impact on the employee and his or her family, which 
is significant.
    Establishing an onsite case management or return-to-work 
coordinator allows companies to provide individual assessments 
and intervention based on an employee's specific impairment. 
Employers can provide creative accommodations, such as 
workplace redesigns, adaptive equipment, or can sometimes find 
simple solutions such as a keyboard tray or a specific mouse 
for carpal tunnel syndrome.
    Accommodations can include flexible work schedules such as 
defined flexible work schedules and telecommuting. Certainly, 
some accommodations can be very complex, and may require a 
third party expert assistance and expensive changes, but many 
of these enhancements help employees to perform their jobs.
    Second, there is a tremendous value for both employers and 
employees in preventative strategies. Wellness programs, onsite 
fitness facilities, weight management, and smoking cessation 
programs, and onsite health screenings, just to name a few, are 
initiatives that enhance team building and overall health of 
the employees. These programs can ultimately reduce the 
incidence of injuries and illnesses through education and 
action, as well as help employees with impairments to remain 
active at work.
    The third recommendation is for large employers to clearly 
define policies and jobs. Employers must ensure that their 
transition back to work programs have written guidelines, light 
duty and regular duty job description, and formalized training 
to new tasks and processes that will be involved to ensure 
consistency.
    Finally, incentivizing work while transitioning employees 
from disability into the workplace, and engaging employees is 
also important. Large employers can minimize employee issues 
through such programs as employee assistance and back-up 
support care. To keep employees engaged, employers can give 
employees that are on medical leave, voluntary continued access 
to employer resources such as the Internet or communication 
systems, if that is approved by their healthcare provider.
    In closing, Mr. Chairman, I want to be clear that while 
some of these suggestions for disability management tactics may 
work for different employers and their employees, all the 
suggestions are circumstantial. There is obviously not one 
simple one-size-fits-all--and we know that--solution for every 
employer of every size and in every industry. But in the end, 
proactive employer interventions and prevention efforts can 
help employees return to work or stay at work, and that 
improves the bottom line for both employers and families.
    I thank you again, and I thank the committee for listening 
to my perspective, and I am happy to answer your questions.
    [The prepared statement of Ms. Amato follows:]
      Prepared Statement of Karen A. Amato, R.N., C.C.M., C.P.D.M.
                              introduction
    Good morning Chairman Harkin, Ranking Member Enzi, and 
distinguished Senators. My name is Karen Amato, and I am director of 
the integrated disability management, wellness and safety programs for 
SRA International, Inc. in Fairfax, VA. I appear before you today on 
behalf of the Society for Human Resource Management (SHRM), of which I 
have been a member since 2008. I am also a member of the Northern 
Virginia SHRM chapter (NOVA SHRM). I thank you for this opportunity to 
testify before the committee on employer approaches to disability 
management and the general opportunities and challenges around return-
to-work strategies for employers. My comments will address my 
experience with large employers that have faced the challenges and 
successes of bringing employees with disabilities back into the 
workplace.
    I commend you both for holding this hearing on this meaningful 
topic. By way of introduction, I have over 21 years of experience 
managing disability and return-to-work programs, worksite wellness, 
safety programs and HR administration, as well as 36 years as a 
registered nurse.
    SHRM is the world's largest association devoted to human resource 
(HR) management. Representing more than 260,000 members in over 140 
countries, the Society serves the needs of HR professionals and 
advances the interests of the HR profession. Founded in 1948, SHRM has 
more than 575 affiliated chapters within the United States and 
subsidiary offices in China and India.
    SRA International, Inc. is dedicated to solving complex problems of 
global significance for government clients in defense, intelligence/
homeland security/special operations, health and civil agencies. SRA 
International, Inc. employs more than 6,500 people located in more than 
50 locations around the world.
    In today's economy, organizations must compete in the global market 
for skilled, dedicated employees, while managing their labor costs and 
expenses to remain competitive. HR professionals and employers must 
also address how to manage their business when faced with challenges 
such as employee absences, added workload for colleagues, and the 
impact on productivity and morale due to disability or illness. 
Proactively keeping employees at work who are experiencing impairments 
and transitioning employees who have experienced a disability back into 
the workforce has value to the employer in mitigating some of this 
impact while meeting the individual employee's needs. However, even 
employers with very comprehensive programs can experience challenges 
with these programs.
              shrm and the americans with disabilities act
    SHRM and its members have a long tradition of promoting effective 
practices for advancing equal employment opportunity for all people, 
including individuals with disabilities. SHRM strongly supports the 
goal of increasing the employment of people with disabilities, and 
believes that the Americans with Disabilities Act (ADA) strikes the 
appropriate balance between the needs of individuals and employers. 
SHRM places a priority on developing educational materials and 
initiatives for HR professionals on hiring individuals with 
disabilities. SHRM has been a partner with the Department of Labor's 
Office of Disability Employment Policy for this purpose since 2006. 
SHRM created a Disability Employment Resource Web page that offers its 
members a wealth of resources, articles and links to help source, 
recruit, retain and develop people with disabilities. SHRM also 
provides training through conference programming and webcasts to its 
members on disability law and effective employment practices. SHRM's 
member organizations regularly engage in outreach efforts to civil 
rights and disability organizations, both as part of their current 
affirmative action obligations and as a sound business practice.
    The ADA was enacted in 1990 to protect individuals with 
disabilities from discrimination in employment, public services and 
public facilities. The ADA prohibits discrimination against current 
employees and job applicants by employers that employ 15 or more 
individuals, and requires such employers to provide reasonable 
accommodations to employees who have known disabilities. The ADA 
defines ``disability'' as ``a physical or mental impairment that 
substantially limits one or more of the major life activities of such 
individual.'' Individuals must meet this disability standard to be 
eligible for the ADA's nondiscrimination and accommodation coverage.
    In 2008, SHRM and other employer associations reached an agreement 
with disability advocacy organizations to address a handful of Supreme 
Court holdings in the preceding decade (including Sutton v. United 
Airlines [1999] and Toyota Motor Manufacturing Kentucky Inc. v. 
Williams [2002]) that had narrowed the definition of disability under 
the ADA. The resulting deal led to the ADA Amendments Act (ADAAA), 
which was authored by you, Chairman Harkin, and passed both houses of 
Congress unanimously before being signed into law by President Bush in 
2008.
    SHRM continues to believe that law strikes an appropriate balance 
between the needs of individuals with disabilities and the obligations 
of HR professionals under the ADA. On one hand, the ADAAA affirms that 
Congress intended the ADA's coverage to be broad, to cover individuals 
who face unfair discrimination because of a disability. On the other 
hand, the ADAAA also retained the ADA's individualized assessment of 
employees to prevent employers from being exposed to excessive 
liability.
    Chairman Harkin, we commend you for sponsoring the ADAAA and for 
including SHRM in the legislative process that produced the 2008 law.
                 shrm research on disability employment
    SHRM has collaborated with the Cornell University ILR School 
Employment and Disability Institute on a research study about 
organizational policies and practices related to employing people with 
disabilities. This series of research findings also analyzes what 
metrics organizations track for all employees and employees with 
disabilities and any barriers organizations experience with employment 
or advancement for people with disabilities. The survey of more than 
600 HR professional respondents will be released in three parts: (1) 
Recruitment and Hiring, (2) Training, and (3) Retention and 
Advancement.
    The purpose of the first, soon-to-be-released survey results is to 
provide new insights into the differences in HR practices in hiring and 
retaining individuals with disabilities and the relationship between 
these practices and positive employment outcomes.
    The survey's key findings are:

     Most employers have policies and practices related to the 
recruitment and hiring of people with disabilities--Nearly two-thirds 
(61 percent) of organizations indicate including people with 
disabilities explicitly in their diversity and inclusion plan, 59 
percent require sub-contractors/suppliers to adhere to disability 
nondiscrimination requirements and 57 percent of organizations stated 
having relationships with community organizations that promote the 
employment of people with disabilities.
     Effectiveness of policies and practices--Organizations 
believe that requiring sub-contractors/suppliers to adhere to 
disability nondiscrimination requirements (38 percent), including 
people with disabilities explicitly in diversity and inclusion plans 
(29 percent), and having explicit organizational goals related to the 
recruitment or hiring of people with disabilities (34 percent) were 
very effective practices.
     Larger organizations are more likely to have policies and 
practices related to recruitment and hiring in place compared with 
smaller organizations. Publicly owned for-profit organizations also are 
more likely to have some policies and practices related to recruitment 
and hiring in place compared with privately owned for-profit 
organizations and nonprofit organizations.\1\
---------------------------------------------------------------------------
    \1\ Society for Human Resource Management and Cornell University 
ILR School Employment and Disability Institute (2012). SHRM Survey 
Findings: Employing People with Disabilities--Practices and Policies 
Related to Recruiting and Hiring Employees with Disabilities.
---------------------------------------------------------------------------
    key areas for managing the impact of disability in the workplace
    Although there are fundamental elements of a successful strategy in 
managing disability in the workplace, there is not a simple ``one-size-
fits-all'' solution for every employer. Employers and human resource 
professionals must balance pressing business objectives against common 
challenges associated with return-to-work strategies.
    The success of the strategy will depend on the extent to which 
employers are able to mitigate the negative impact, while 
simultaneously meeting the employee's needs. The business imperatives 
of the employer and the abilities of the affected employee will inform 
determinations regarding appropriate return-to-work (RTW) solutions 
which are considered in conjunction with the employer's statutory 
obligations and protection of the individual's rights under the Family 
and Medical Leave Act (FMLA), the Americans with Disabilities Act and 
the Americans with Disabilities Act Amendments Act, among other 
regulations. However, there are a few key areas for managing 
disabilities in the workplace:

     Disability Impacts the Entire Family: Work is important to 
people and is a large part of what defines them. Prolonged absence from 
work impacts the family not only financially, particularly in single 
parent homes; but it also affects employees' emotional well-being. 
Experienced professionals recognize that the longer employees are out 
of work due to disability, the more likely they are to become 
disconnected from the employer and the benefits they receive from 
working. Intervening to help employees stay at work or transition back 
into the workplace quickly following a disability not only improves 
their recovery, it also enhances their self-image and reduces stress on 
their families. It also enhances their commitment to their employer as 
an employer of choice. It has become apparent that there are 
opportunities for large employers to take proactive steps that will 
better position them to retain disabled employees on the job. According 
to a report by the Government Accountability Office, an injured or 
disabled worker who remains out of work for more than 6 months has only 
a 50 percent chance of returning to work at all.\2\
---------------------------------------------------------------------------
    \2\ U.S. Government Accountability Office, Health, Education and 
Human Services Division (1996). Return-to-Work Strategies From Other 
Systems May Improve Federal Programs. http://www.gao.gov/assets/160/
155504.pdf.
---------------------------------------------------------------------------
     Proactive Interventions and Prevention Reduce Disability 
Claims and the Bottom-Line Impact: Early intervention to recognize and 
respond to an employee's needs for workplace modifications from the 
first day of hire through the entirety of the employee's tenure helps 
mitigate the impact of current and future impairments on their ability 
to be a productive worker. Anticipating, identifying and providing 
accommodations to new hires such as equipment, assistive technology, 
interpreters, and flexible scheduling makes onboarding smooth and the 
employee is more-quickly engaged and productive. Proactively responding 
to employee's requests for workplace modifications based on their 
health concerns, and working together to identify reasonable solutions 
and confirming the effectiveness of the accommodation can increase 
productivity and often avoids absence and disability through reduction 
of their symptoms or impact of their impairment. Modifications may 
include equipment, technology, assistive devices or services, flexible 
scheduling, and teleworking.
    As evidenced in a Mercer study and Towers Watson/National Business 
Group on Health study, employers can determine the value of this cost 
avoidance by measuring their cost of total disability as a percentage 
of payroll against readily available benchmark data.\3\
---------------------------------------------------------------------------
    \3\ Towers Watson National Business Group on Health (2012). Staying 
at Work Report, 2011-12; and Mercer (2010). Survey on the Total 
Financial Impact of Employee Illnesses, 2010.
---------------------------------------------------------------------------
     Early Return-to-Work Programs Work: Providing supportive 
services (some large employers may have return-to-work coordinators or 
case managers) to the employee throughout their absence keeps them 
engaged and connected with the organization and provides earlier 
opportunities to transition back into the workplace. Large employers 
and human resource professionals who engage the qualified, but impaired 
employee and the manager in a flexible, interactive process are most 
successful with providing effective workplace accommodations. Of 
course, this process is fluid and may require additional evaluation and 
adjustments, and it means that employers must have the dedicated staff 
capable of managing the process. Bringing employees back to work in a 
productive capacity where it's medically possible, through provisions 
such as light duty work, workplace modifications, flexible work 
arrangements, teleworking and procurement of equipment make it less 
likely they will transition to long-term disability. For the employer, 
the ability to return trained, skilled employees back to the workplace 
can avoid recruitment and replacement costs and reduce direct and 
indirect costs of absence and disability. Organizations who offer these 
programs have to be vigilant to comply with the relevant Federal and 
State employment laws.
     Success of the Integrated Disability Model (IDM): Going 
beyond stay-at-work and return-to-work programs, the integrated 
disability model broadens this reach by engaging the best of an 
employer's benefits, along with its departments and disciplines to 
support and meet an employee's need to remain productive, as well as to 
meet the demands of their job. SHRM outlines this integrated model in a 
number of its publications and programming it provides to HR 
professionals. The model indicates that participating departments may 
include HR partners, benefits, health and wellness, safety, risk 
management, diversity and philanthropy. Providing a comprehensive 
approach to fostering a healthy, inclusive and caring environment that 
is responsive to employees' needs can positively affect the employee's 
productivity and well-being. Large employers can offer a variety of 
support including counseling through work-life balance programs such as 
employee assistance programs, wellness programs, ergonomic evaluations, 
parental and adoption leave and resources, safety evaluations, job 
accommodations, and opportunities to participate in charity work and 
diversity groups to enhance the workplace environment.
    Employers also need to evaluate trends from health care, disability 
and workers' compensation claims to design wellness and workplace 
safety programs that provide employees with tools for engagement to 
mitigate risk.
     Training: Supervisors' and employees' actions toward 
others with impairments can have a bearing on whether an organization 
is successful in supporting people with disabilities. Employees and 
supervisors should be trained in how to respond to employees who raise 
concerns about their health and workplace difficulties. They must be 
aware of internal resources and how to connect the employee to them. 
Workforce diversity training for employees enhances how employees with 
impairments are treated in the workplace. Training on proper body 
mechanics and proper use of equipment and technology associated with 
workplace accommodations will hasten an employee's productivity and 
avoid frustrations. Offering sensitivity training to employees for such 
things as behavior around service animals, buddy systems and support 
for colleagues with disabilities is helpful.
  successful strategies for an effective disability management program
    Since the U.S. Equal Employment Opportunity Commission promulgated 
the final regulations of the ADAAA in March 2011, the expansion of the 
definition of disability provides a broad scope of protection to 
persons with many types of impairments. In my experience, successful 
strategies for an effective disability management program include:

     On-site case management/RTW coordinator: This type of 
support provides individual assessment and intervention based on 
specific impairments through collaboration with the employee, 
supervisor, healthcare provider and insurance carriers as appropriate.

          Ensure continual followup to support RTW success.
          Explore creative alternate jobs or current job 
        modifications.
          Research and deliver appropriate accommodations.
          Remain connected to the employee by providing support 
        throughout their absence and into the RTW process.
          Contract with external resources when needed (i.e., a 
        life skills coach).
          Teams that include nurse case manager, return-to-work 
        coordinator and/or wellness coordinator are better positioned 
        to manage an integrated disability management program.

     Define policies and jobs: Employers must ensure that their 
programs have specific written guidelines for transition-back-to-work 
programs, light duty and regular duty job descriptions, and formalized 
training to new tasks and processes to ensure consistency. Formal 
policies such as flexible workplace, teleworking and compressed work-
week provide documentation and oversight for large employers.
     Incentivizing work and employee engagement: Large 
employers, who continue as reasonable health and welfare benefits, as 
well as other programs, such as employee assistance programs and back-
up care, minimize an employee's concerns. Employees may be provided 
voluntary continued access to employer resources (such as the intranet 
and communications) while on medical leave, if approved by the 
healthcare provider. Providing a transitional RTW pecuniary incentive 
allowing work to supplement disability benefits for a defined period of 
time protects the employee's pre-
disability income while transitioning to work part-time. If the 
disability policy does not allow supplemental benefits during a 
transition back to work this will negatively impact the willingness of 
the employee and the physician to engage in an early return-to-work 
program.
     Provide creative accommodations: Often it can be a simple 
solution such as a keyboard tray to reduce carpal tunnel symptoms that 
enhances the employee's ability to perform their job. Some solutions 
are complex, may require expert assistance and substantial and 
expensive changes to the worksite in order to accommodate the employee. 
Accommodations can include defined flexible work schedules, ergonomic 
workstations, voice-activated computer systems, lighting adjustments, 
specialty equipment, technology, mobility devices or relocating the 
work within reach.
    Accommodation challenges can occur based on the nature of the work. 
Organizations employing white collar workers have more opportunity to 
offer light duty and workplace accommodations to employees with 
disabilities, as they typically have less physically demanding job 
functions that need to be addressed. Organizations with a workforce 
consisting of mostly blue collar workers tend to have limited 
availability for light duty positions and a greater challenge when 
providing accommodations that address the employee's ability to perform 
physically challenging job requirements.
     Establish workplace flexibility strategy: By providing 
workplace flexibility policies and programs, employers can help all 
employees better meet their work-life needs. Workplace flexibility 
policies, such as flexible scheduling and telecommuting, can help 
employees with disabilities perform their job functions.
    SHRM has engaged in a significant effort to educate HR 
professionals and their organizations about the importance of effective 
and flexible workplaces. On February 1, 2011, SHRM formed a multi-year 
partnership with the Families and Work Institute (FWI). This 
partnership combines the research and expertise of a widely respected 
think tank specializing in workplace effectiveness with the influence 
and reach of the world's largest association devoted to human resource 
management. By highlighting strategies that enable people to do their 
best work, the partnership promotes practical, research-based knowledge 
that helps employers voluntarily create effective and flexible 
workplaces that fit the 21st century workforce and ensure a new 
competitive advantage for businesses. Although FWI is an independent 
non-
advocacy organization that does not take positions on these matters, 
and the position of SHRM should not be considered reflective of any 
position or opinion of FWI, I'd like to briefly mention one of the key 
elements of the SHRM/FWI partnership, the When Work Works program, 
because it seeks to educate and showcase employers who are meeting the 
needs of our 21st century workforce. The centerpiece of the initiative 
has been the Alfred P. Sloan Award for Excellence in Workplace 
Effectiveness and Flexibility, a nationally recognized award for 
organizations that are using workplace flexibility as part of their 
business practice.
    When Work Works is a nationwide initiative to bring research on 
workplace effectiveness and flexibility into community and business 
practice. Since its inception in 2005, When Work Works has partnered 
with an ever-expanding cohort of communities from around the country 
to:

    1. Share rigorous research and employer best practices on workplace 
effectiveness and flexibility.
    2. Recognize exemplary employers through the Sloan Award for 
Excellence in Workplace Effectiveness and Flexibility.
    3. Inspire positive change so that increasing numbers of employers 
understand how flexibility can benefit both business and employees, and 
use it as a tool to create more effective workplaces.

     Comprehensive Wellness Programs: Employers can provide 
comprehensive wellness programs to support employees in maintaining or 
improving their health. On-site fitness and pedometer programs, weight 
management programs, smoking cessation programs, health screenings, 
health coaching and CPR training are just a few initiatives that 
enhance team building and overall health.

    Consider an employee who is diagnosed with a neurologically 
degenerating disease such as Parkinson's disease. A marketing and sales 
company was able to bring this employee, who was a data analyst, back 
to work following a few weeks of total disability by providing a 
scooter and a larger monitor for visual deficits. As the employee's 
disease progressed and he experienced hand tremors and slurred speech, 
he requested that he continue to work and additional accommodations 
were provided to include a special keyboard and writing tools. The 
employee was able to successfully continue to work for 6\1/2\ years, 
before he was no longer able to perform the essential functions of the 
job. Had this employee worked as a back hoe operator for a construction 
company, the only light duty work the employer may have been able to 
provide was a traffic flagger, which would have required standing on 
the street. The employee's impairment would have precluded him from 
this and he would have remained on total disability.
                       large employer challenges
    As I noted earlier in my testimony, there are several legal and 
regulatory challenges that an employer must navigate in offering a 
disability management program. These primary challenges include the 
following:

     Impact of Individual State Benefits: There is an 
administrative burden on employers who have employees that work in 
multiple States with paid disability and family leave benefits in terms 
of increased communications, tracking and the potential overlap in 
benefits and conflicts between Federal and State law. Human resource 
professionals must have a general understanding of the various State 
disability benefits and ensure their employees are informed of the 
process for applying for these benefits. If the employer has private 
disability insurance, the employees should be informed of the process 
if State benefits will offset the employer's disability benefits. 
Employers have the added responsibility of completing paperwork for 
both the State and private disability carrier, and coordination of a 
partial return-to-work requires collaboration between all stakeholders. 
Navigating the bureaucratic requirements can be confusing to an 
employee; they will look to the employer for guidance and 
understanding.
    In addition, for State-paid family leave benefits, employers must 
inform employees of their rights as well as the process for applying 
for benefits. For example, if an employer employs both a husband and 
wife, both may be entitled to paid benefits for the same event. In this 
case, the employee with the disability would be eligible for State 
disability and the spouse may be eligible for paid family leave. In 
some cases, ongoing reports of need for paid family leave will be 
required from the spouse.
     FMLA and ADA: Intermittent FMLA continues to pose 
administrative challenges for large employers in terms of being able to 
ensure appropriate staffing to meet the needs of the business on a day-
to-day basis and ensure they have the current information and updates 
to provide the appropriate approvals. Other employees may request 
similar workplace equipment and modifications, unaware that an 
accommodation for a disability was made. For those on light duty, 
concerns arise surrounding the impact the employee's future FMLA leave 
may have on staffing needs and how the organization can manage its work 
requirements in the long term. Extension of leave beyond FMLA 
requirements, protected by the ADA, may involve a prolonged absence.

    As employers navigate the many laws that govern the employment of 
people with disabilities, there is much to understand and many 
resources to explore. Employers who have been successful in providing 
early RTW programs and workplace accommodations have been able to 
improve their bottom line while helping their employees. Employers 
would benefit from increased education on successful models for RTW 
strategies and information-sharing with regard to resources for 
managing workplace accommodations.
                               conclusion
    Again, I thank the committee for listening to my perspective on 
employer opportunities and challenges in return-to-work strategies for 
employees with disabilities.
    I am happy to answer any questions you may have.

    The Chairman. Thank you very much, Miss Amato.
    And now we turn to Christine Walters. Welcome, and please 
proceed.

STATEMENT OF CHRISTINE V. WALTERS, M.A.S., J.D., S.P.H.R., SOLE 
           PROPRIETOR, FIVEL COMPANY, WESTMINSTER, MD

    Ms. Walters. Thank you, Chairman Harkin.
    And thank you, in their absence, to the other members of 
the committee, and Ranking Member Enzi.
    I am Christine Walters. Like Karen Amato, I am before you 
today as a member of SHRM, Society for Human Resource 
Management. Thank you, also, for your introduction. I do have 
about 25 years combined experience in employment law practice, 
HR administration, management, and teaching, and practice today 
as an independent HR and employment law consultant, 
predominantly with small business. And it is from that 
perspective that I will share with you this morning my 
experience in the private sector predominantly small 
businesses, their experiences and challenges regarding stay-at-
work and return-to-work, or RTW, strategies.
    Life for a small business owner is very hectic and 
navigating the maze of laws with limited resources and 
sometimes limited personnel can be overwhelming. What is more, 
smaller employers often have no in-house HR professional. If 
they do have a person who is in charge of HR administration, 
that person also often has two or three other jobs, perhaps 
payroll administrator or office manager. In my experience, the 
myriad of Federal and State laws comprise the primary challenge 
that small employers face when trying to hire and retain 
individuals with disabilities.
    To give you a quick sense of the complexity, the ADA, the 
FMLA, and State worker's comp laws are sometimes affectionately 
known as ``the Bermuda Triangle'' of HR. Despite their merits, 
these statutes are complex, they are overlapping, and they are 
sometimes frustrating for small employers to administer 
particularly those trying to proactively administer an RTW 
strategy.
    First with regard to the ADA, in light of the enactments of 
the ADA Amendments Act, the key focus, as we know now, is on 
whether discrimination has occurred, not on whether the 
individual has a disability. I hear sometimes that shift in 
focus may make RTW programs difficult to sell to small 
business. They may feel that under this new analysis, maybe it 
is safer to do less for all, than more for some.
    Under the FMLA, there are several challenges. One example 
is that the time an employee spends performing light duty does 
not count toward FMLA leave, leaving that employee's full 12-
week entitlement fully intact. Also, that same employee must be 
paid his or her regular wages while working light duty. That 
can create some employee relations challenges when that person 
works alongside other employees who are paid less, while 
performing the same work.
    State workers' compensation laws are also complex, but 
there are some nice opportunities to partner with worker's comp 
carriers to assess methods for balancing RTW strategies with 
gainful employment, and also overseeing overall fiscal 
responsibility.
    Then finally, there is the Fair Labor Standards Act, of 
course, FLSA and State wage and hour law considerations when 
implementing flexible work arrangements; three very quick 
examples.
    Under the FLSA, of course, employers are permitted to allow 
a nonexempt employee, for example, to work four 10-hour days in 
a compressed workweek without the employer--as long as they do 
not go over 40--to incur any overtime obligations. However, 
under California law, for example, if an employee works more 
than 8 hours in a day, that employer would have to pay 
overtime.
    Or another example, take a healthcare technician who wants 
a flexible work schedule to accommodate his or her own 
disability, or to care for a person with whom he associates who 
has a disability, working maybe 45 hours the first week and 35 
hours the second week in the same payroll period. The FLSA, 
again, would require that employer to pay overtime for the 
hours over 40 in that first workweek. And then if the employer 
could find a job sharing arrangement whereby a coworker might 
work those first 5 hours or the 5 hours over 40 in that first 
workweek, that might violate State law. We currently have at 
least 14 States that prohibit mandatory overtime for certain 
professionals in certain industries, including the healthcare 
industry.
    As Congress, Federal, and State regulatory agencies 
consider proposals to support the employment, the retention, 
and the advancement of persons with disabilities, we 
respectfully suggest that we focus our distinction or focus our 
concentration on carrots rather than sticks. And that is to 
say: let us focus on employer incentives rather than mandates. 
Let us entice employers to engage in proactive measures to 
recruit, hire, retain, train, and advance individuals in their 
workplaces and persons with disabilities. Small employers can 
secure rewards, be they tax incentives or safe harbors to 
enhance and encourage those activities.
    I thank you so much for calling today's hearing, listening 
to my comments, and I, as well, remain open for questions.
    Thank you.
    [The prepared statement of Ms. Walters follows:]
   Prepared Statement of Christine V. Walters, M.A.S, J.D., S.P.H.R.
                              introduction
    Chairman Harkin, Ranking Member Enzi, and distinguished members of 
the committee, my name is Christine Walters. Thank you for the 
invitation to appear before the committee to share private sector 
lessons, experiences and challenges regarding disability management 
practices.
    By way of introduction, I have 25 years of combined experience in 
human resources administration, management, employment law practice and 
teaching. Today I am an independent human resources and employment law 
consultant with the FiveL Company in Westminster, MD. I have served as 
an adjunct faculty member of the Johns Hopkins University, teaching a 
variety of courses in graduate-, undergraduate- and certification-level 
programs from 1999 to 2006 in human resource management topics. I am 
pleased to say that my first book, From Hello to Goodbye: Proactive 
Tips for Maintaining Positive Employee Relations, was published in 
March 2011 and was the publisher's #4 best seller last year.
    I appear today on behalf of the Society for Human Resource 
Management (SHRM). SHRM is the world's largest association devoted to 
human resource management. Representing more than 260,000 members in 
over 140 countries, the Society serves the needs of HR professionals 
and advances the interests of the HR profession. Founded in 1948, SHRM 
has more than 575 affiliated chapters within the United States and 
subsidiary offices in China and India. On behalf of SHRM and its 
members, I thank you for this opportunity to appear before the 
committee to share return-to-work strategies and other disability 
management practices in the 21st century workplace. My testimony will 
rely heavily on my experience working with small businesses.
          how employers can leverage return-to-work strategies
    What is a return-to-work (RTW) strategy? Also referred to as 
disability management, the U.S. Government Accountability Office (GAO) 
defines an RTW strategy as a ``proactive approach to controlling 
disability costs while helping disabled employees return to work.'' \1\ 
RTW programs and strategies have been the subject of national and 
international research and literature for decades. As examples:
---------------------------------------------------------------------------
    \1\ U.S. Government Accountability Office, Health, Education and 
Human Services Division (1996). Return-to-Work Strategies From Other 
Systems May Improve Federal Programs. http://www.gao.gov/assets/160/
155504.pdf.

     In 1998, the International Labour Organisation's 
International Research Project on Job Retention and Return to Work 
Strategies for Disabled Workers (IRP) examined the inter-relationships 
of public and enterprise policies and practices as they affect the 
retention and return to work of disabled workers in eight countries: 
Canada, France, Germany, the Netherlands, New Zealand, Sweden, the 
United Kingdom and the United States.\2\
---------------------------------------------------------------------------
    \2\ Thornton P (1998) International Research Project on Job 
Retention and Return to Work Strategies for Disabled Workers--Key 
Issues, International Labour Organisation.
---------------------------------------------------------------------------
     A 2001 IRP report addressed a major six-country study on 
work incapacity and reintegration (the WIR project) undertaken in the 
mid-1990s under the auspices of the International Social Security 
Association. The Project drew on data compiled in six longitudinal 
studies in Denmark, Germany, Israel, the Netherlands, Sweden and the 
United States.\3\
---------------------------------------------------------------------------
    \3\ Bloch, F., and Prins, R. (2001). Who Returns to Work and Why? 
International Social Security Series, Volume 5, Transaction Publishers. 
USA, UK.
---------------------------------------------------------------------------
     A 2002 IRP report on a qualitative study of return to work 
in small workplaces, particularly its sociological dimensions. The 
study examined the strategy of Early and Safe Return to Work (ESRTW) 
used in Ontario--an approach that emphasized workplace self-reliance 
and early return to work before full recovery in modified jobs.\4\
---------------------------------------------------------------------------
    \4\ Eakin, J.M., Clarke, J., and MacEachen, E. (2002). Return to 
Work in Small Workplaces: Sociological Perspective on Workplace 
Experience with Ontario's ``Early and Safe'' Strategy, University of 
Toronto/Institute for Work and Health Study, Canada.
---------------------------------------------------------------------------
     Also in 2002, IRP published a literature review that 
considered the matters of work preparation and vocational 
rehabilitation. The review focused mainly on the development of 
vocational rehabilitation in the United Kingdom, but also considered 
approaches to vocational rehabilitation drawing on international 
literature.\5\
---------------------------------------------------------------------------
    \5\ Riddell, S. (2002). Work Preparation and Vocational 
Rehabilitation: A Literature Review, Strathclyde Centre for Disability 
Research, University of Glasgow.

    In 1996, the GAO Health, Education, and Human Services Division 
published a report for the Chairman of the U.S. Senate Special 
Committee on Aging to respond to an inquiry regarding key private-
sector practices used to return disabled workers to the workplace. The 
report also included examples of how foreign employers implement RTW 
strategies for persons with disabilities. The report found that other 
countries had implemented RTW strategies that were similar to those in 
the U.S. private sector. Although the study was published in 1996, its 
findings are still remarkably applicable today.
    The GAO study found three common elements to successful RTW 
strategies including in the private sector in the United States, 
Germany and Sweden:

    1. Early intervention--The GAO reported that 50 percent of 
employees who go out on disability leave for 5 or more months will 
never return to work.

     Know your RTW metrics. A successful program is dependent 
upon buy-in and support from all levels of the organization. Define 
your company's goals. Know your baseline measures. What are your 
average days-lost-from-work, average absence rate, on-the-job injury/
illness incident report? What are the trends, e.g., are they 
increasing/decreasing? How do they compare to your market by industry, 
geography and size? How will you measure success of your RTW program? I 
applaud SHRM's efforts to standardize employment metrics and its active 
engagement with ANSI toward new ISO initiatives.\6\
---------------------------------------------------------------------------
    \6\ Society for Human Resource Management (2011). Press release. 
ISO Approves U.S. Proposal for International Standards on Human 
Resource Management, March 3, 2011. http://www.shrm.org/about/
pressroom/PressReleases/Pages/ISOApprovesUSProposal.aspx.
---------------------------------------------------------------------------
     Stay in contact with employees out on leave; help them 
feel still connected to the job.

    2. Case management--Provide RTW assistance and manage cases to 
achieve goals. RTW requires an individualized approach, and may not 
always mean that an employee returns to the same job.
    3. Providing RTW incentives----

     Retain employer-sponsored medical benefits, which serve as 
an incentive to return to work.
     The GAO report states that if disability benefits are too 
generous they can serve as a disincentive to return to work.
     But incentives alone are not enough; they must be 
incorporated into RTW practices such as including a contractual 
requirement for cooperation with a RTW plan as a condition of 
eligibility.

    One-size-does-not-fit-all. How any given employer provides creative 
alternatives to work schedules and duties is very much driven by the 
industry and size of the employer. But even small business employers 
are becoming more learned and creative in finding ways to keep 
employees with disabilities gainfully employed. Just some of these 
flexible staffing models include:

     Flex time--permitting employees to work flexible schedules 
around a ``core'' set of hours.
     Alternative work schedules (AWS)--alternate work schedules 
such as 4/10 workweeks.
     Job sharing--where two employees may share the duties and 
work schedule of one FTE.
     Teleworking--permitting employees to work from home or an 
alternate location.
                     key issues for small business
    Life for a small business owner is hectic, and navigating the maze 
of laws with limited resources and personnel can be overwhelming. 
Smaller employers often have no in-house HR professional. If they have 
someone who is responsible for HR, that individual also probably 
handles two or three other job functions (for example, the HR manager 
may also be the payroll administrator and office manager).
    In my experience, here are some of the primary disability 
management issues faced by smaller sized employers:

    Myriad Federal and State laws--Despite their merits, the ADA, FMLA 
and workers' compensation laws are referred to as ``the Bermuda 
Triangle of HR.'' They are particularly complex, overlapping and 
frustrating for small employers to administer--particularly for 
employers administering an RTW strategy. Those three and other statutes 
are discussed here:

     ADA--In light of the enactment of the ADA Amendments Act 
of 2008, the key point to focus on now is whether discrimination 
occurred, not whether an individual has a disability. This shift in 
focus may make RTW programs more difficult to ``sell'' to small 
business. Some employers may feel under the new analysis that it may be 
safer to do less for all than more for some.
     FMLA--Under the FMLA, providing same pay during light duty 
creates tension among co-workers. Time spent working light duty does 
not count toward FMLA leave. Reduced schedule leave = infinite FMLA 
leave (never exhaust 480 hours). Employee retains protected right to 
decline offer of light duty work, while employee out on non-FMLA 
medical leave has no such protected right.
     Workers' compensation (WC)--There are opportunities to 
partner with WC carriers to assess methods for balancing RTW, gainful 
employment and fiscal responsibility. As mentioned above with regard to 
FMLA rights, an employee has a right under FMLA to decline an offer of 
light duty work. Declining the opportunity to work light duty may, 
however disrupt or stop the employee's receipt of continued benefits. 
This strategy is similar to that described in the GAO reported 
referenced earlier in my remarks, e.g., a purpose of the study was to 
assess ways to reduce increasing DI costs paid by government agencies.
     FLSA and State wage and hour laws--Flexible staffing 
models such as AWS that include a 10-hour-a-day, 4-day workweek known 
as a 4-10 workweek must be implemented with consideration to Federal 
and State wage and hour laws. Employers may find they inadvertently 
create increased labor costs when such models result in overtime that 
was not budgeted for nor anticipated or that violates State wage and 
hour laws that mandate overtime for hours worked in a day (such as in 
California) or in one of at least 14 States that limit or restrict 
mandatory overtime for certain professionals.
     Covered Federal (sub)contractors and Executive Order 
11246--For many small employers, it is good news and bad news when they 
are awarded a government contract or subcontract and exceed the 50-
employee threshold for the first time. On one hand, they are very 
excited about their success. On the other hand, they are also sometimes 
overwhelmed at the task ahead of them. Such contractors will quickly 
recruit qualified candidates in numbers greater than ever before to 
support the new contract. Then, I find more often than not they are 
stunned to learn about their obligations to now not only draft written 
affirmative action plans (Plans) but to administer those Plans and 
maintain all the corresponding documentation. With regard to the 
recruitment, selection, hiring, training and other employment 
activities related to persons with disabilities covered contractors 
currently must:

          Annotate the application or personnel form of each 
        covered individual to identify each vacancy for which the 
        applicant was considered. Such annotation shall include: (i) 
        the identification of each promotion for which the covered 
        employee was considered, and (ii) the identification of each 
        training program for which the covered individual was 
        considered.
          Where an employee or applicant is rejected for 
        employment, promotion, or training, a statement of the reason 
        as well as a description of the accommodations considered, 
        where applicable.
          Where a covered applicant or employee is selected for 
        hire, promotion, or training and the employer undertakes any 
        accommodation that makes it possible to place the covered 
        individual on the job, the application form or personnel record 
        will contain a description of that accommodation.
          Review physical and mental job qualifications upon 
        the development of any new position, update existing positions 
        or position descriptions and recommend and implement any 
        necessary changes. Such review shall take place on an on-going 
        and as-needed basis and no less than once each year upon update 
        of the Plan.
          When a qualified candidate is referred or selected 
        from Federal, State or local agencies or other resources 
        identified in the employer's Plan, formal arrangements must be 
        made with the respective agency for the referral of the 
        applicant, followup and feedback on the disposition of 
        applicant.
          Track and monitor all personnel activity, including 
        referrals, placements, transfers, promotions, terminations and 
        compensation at all levels.
          Provide training to all personnel involved in the 
        recruitment, screening, selection, promotion, corrective action 
        and other processes related to the employment of persons with 
        disabilities and the commitments of the Plan.

    Early intervention--Small business owners often do not have the 
same internal resources that larger employers have. Put another way, 
many small businesses know enough to know what they don't know about 
their legal liability. Without an in-house HR advisor and in an attempt 
to defer the expense of consulting external legal counsel, they may 
feel that silence and inaction are safer than saying or doing the wrong 
thing.
    Case management--Small business owners have limited fiscal and 
staffing resources. Thus, where larger employers may seek second and 
third opinions on legal issues, a small business may be more likely to 
bypass these options for cost reasons. With regard to the strategies 
described above, small business' most frequent concern as I hear it 
expressed is lack of funding and/or expertise to implement the 
recommended case management strategies. Small business owners do not 
have case managers and often have little idea where to look or whom to 
ask to find one.
    Providing RTW incentives--Most small businesses offer some form of 
paid leave program whether it is in the form of traditional vacation 
and sick leave or a combined ``bank'' of paid leave referred to by 
various names such as paid time off (PTO), paid leave days (PLD) or 
some other term. More and more laws are being passed, predominantly at 
the State level, that prohibit employers from requiring employees to 
use the benefit of paid leave for such activities as jury duty, leave 
to care for a family member, leave due to one's own serious health 
condition, leave as the result of being the victim of a crime, leave 
for service in the Uniformed Services, leave that runs concurrent with 
a State disability program, and/or that bar employers from maintaining 
use-it-or-lose-it paid leave policies. While I understand the intent of 
such legislation, the practical impact to small business is that their 
accounts payable liability is reduced at a rate lower or slower than 
anticipated. That fiscal impact, since most employers pay out at least 
some portion of accrued, unused paid leave at termination, may result 
in small business reducing the amount of annual leave it provides to 
employees.
    Setting precedent--The concern I hear most frequently from 
employers who may be less familiar with RTW strategies is about setting 
precedent. Employers aim to be fair and consistent with employees, but 
they may ask ``If I do `x' in this case, won't I have to do the same 
for everyone?''
    Self-fulfilling defeat of essential functions--one court held that 
when an employer accommodated an employee by permitting the employee to 
not perform an essential function of the job for some period of time 
and subsequently determined it could not continue to provide that 
accommodation, the employer had created its own defeating, self-
fulfilling prophecy. The court held that if the employer was able to 
permit the employee to not perform that function for some period of 
time, it must be non-essential.
              shrm's work to promote disability employment
    All of us share a sense of duty to give back to those who serve our 
country. I find so much enthusiasm and passion from employers to 
recruit and retain veterans and those who are currently engaged in the 
armed forces and reserves. As employers become engaged in those 
processes, they may receive their first exposure to providing 
reasonable accommodation for an employee or applicant with a 
disability. Through those experiences I find concerns I have described 
above about setting precedent or creating an argument that will be used 
against you subsides.
    To boost veterans' employment and help organizations meet the 
Nation's skills gap, SHRM is working with two organizations to help 
employers recruit and retain current and former members of the 
military, many of whom return home with 
service-related disabilities.
    The Employer Support of the Guard and Reserve (ESGR) is a 
Department of Defense organization that promotes cooperation and 
understanding between Reserve component members and their civilian 
employers and assistance in the resolution of conflicts arising from an 
employee's military commitment. SHRM signed a statement of support for 
ESGR and the more than 1.2 million citizens from all walks of life who 
have volunteered to serve during two long and difficult wars. In 
addition, the U.S. Department of Labor's Veterans' Employment and 
Training Service (VETS) provides resources to assist veterans and 
service members to boost their employment opportunities. Both of these 
organizations can help HR professionals and employers find, hire and 
retain skilled military service members.\7\ We have much to learn about 
the experiences, perceptions, perspectives, needs and desires of our 
veterans, returning military and reservists. That broadened perspective 
can only enhance our understanding of overlapping, similar and 
different needs with regard to the employment and continued employment 
opportunities for persons with disabilities.
---------------------------------------------------------------------------
    \7\ Society for Human Resource Management (2012). Military 
Employment Resource Page.  http://www.shrm.org/hrdisciplines/
staffingmanagement/Articles/Pages/Military.aspx.
---------------------------------------------------------------------------
     the sloan award for excellence in workplace effectiveness and 
                              flexibility
    I also applaud SHRM's new initiative ``When Work Works.'' The Sloan 
Awards are a signature piece of that initiative within the SHRM/
Families and Work Institute partnership, which aims to educate 
employers about the benefits of workplace flexibility and to recognize 
best practices. In 2011, hundreds of organizations applied for the 
Sloan Award for Excellence in Workplace Effectiveness and Flexibility, 
resulting in 450 winning worksites! Since 2005, the Sloan Awards have 
been recognizing model employers of all types and sizes across the 
United States for their innovative and effective workplace practices. 
For more information, you may go to http://whenworkworks.org/.
                               resources
    I believe a key to continued enhancement in the employment, 
retention and advancement of persons with disabilities is education and 
resources for small business. I find the following to be just a few 
examples and opportunities:

     U.S. Department of Labor's Office of Disability Employment 
Policy's RTW Toolkit (for more information, see link below) \8\
---------------------------------------------------------------------------
    \8\ http://www.dol.gov/odep/pubs/20100727.pdf.
---------------------------------------------------------------------------
     OSHA's Small Business Handbook \9\
---------------------------------------------------------------------------
    \9\ http://www.osha.gov/Publications/smallbusiness/small-
business.pdf.
---------------------------------------------------------------------------
     Federal and State agency (free) public technical 
assistance seminars.
     Physician and employer partnerships and education.
     Corporate wellness programs and legal parity (GINA, HIPAA, 
ADA challenges with compliance).
     Sample, model RTW programs--NY State Insurance Fund \10\
---------------------------------------------------------------------------
    \10\ http://ww3.nysif.com/SafetyRiskManagement/RiskManagement/
LimitingLiability/ReturnToWorkPrograms.aspx.
---------------------------------------------------------------------------
     State and local ``green'' tax credits for AWS programs.
                         carrots versus sticks
    Over the last year, I have seen a plethora of regulatory activity 
at the Federal and State level that is impacting employment practices. 
Add to that employment-related Federal and State legislation. As 
Congress, Federal and State regulatory agencies consider proposals to 
support the employment, retention and advancement of persons with 
disabilities, I respectfully suggest we focus our discussion on carrots 
rather than sticks. That is, applying the same philosophy as shared by 
the GAO to Congress in 1996 let us focus on incentives to entice 
employers to engage in proactive measures to recruit, hire, retain, 
train and advance in their individual workplaces persons with 
disabilities. Let us focus on rewards for engaging in such activities, 
be they tax incentives, safe harbors or recognition programs. Let us 
maintain that focus rather than shifting to discussions of mandates and 
adverse consequences if those mandates are not met.
    These are exciting times and through joint efforts and initiatives 
between Congress, regulatory agencies, small and large business, 
physicians, employees and applicants, I believe we can continue to 
enhance the employment and continued employment opportunities of all 
persons including those with disabilities.
                                closing
    Thank you again for the opportunity to appear before the committee 
to share these experiences and challenges from the small business 
perspective regarding disability management practices.
    I welcome your questions.

    The Chairman. Thank you, Miss Walters.
    And now, we turn to Eric Buehlmann. Eric, Mr. Buehlmann, 
welcome. Please proceed.

        STATEMENT OF ERIC BUEHLMANN, J.D., ARLINGTON, VA

    Mr. Buehlmann. Chairman Harkin, Ranking Member Enzi, and 
other members of the HELP Committee, I appreciate the 
opportunity to add my personal perspective today to the 
discussion of an acquired disability in returning to work.
    My story begins in January 1993. I was a 24-year-old and in 
my last semester of law school. In addition, I was working 
part-time as a staff assistant for Senator James Jeffords. It 
was also the month that I had a brain hemorrhage. As I slowly 
became aware of my surroundings at Georgetown University 
Hospital, the effects of the brain hemorrhage became apparent.
    I was paralyzed on the left side of my body. I was unable 
to see anything from my nose left. I was unable to focus both 
my eyes on the same point, which made it very hard to read. It 
was very difficult for me to sustain my focus for any length of 
time without becoming overly tired, and at times, it was very 
difficult to find the words to express my thoughts and ideas.
    After 3 weeks at Georgetown University Hospital, I 
transferred to the National Rehabilitation Hospital to begin 
more intensive inpatient therapy. While there, I did physical, 
occupational, speech, and vocational therapies. I also had 
individual sessions with a neuropsychologist who helped me 
understand the effects of my brain hemorrhage. I also had group 
sessions with others that had experienced a traumatic brain 
injury. I found these individual and group sessions extremely 
helpful.
    During this time at NRH, Senator Jeffords came for a visit 
and we talked about work. While it was unclear if or when I 
would be able to return, he stated that they were looking into 
accommodations to help me return. As I was not walking at that 
point, one of the issues was wheelchair accessibility of the 
office. Throughout my stay at NRH, Senator Jeffords' office had 
several discussions with my therapist about accommodations.
    After a little more than 2 months at NRH, I left much 
improved. While I continued to do outpatient therapy, my focus 
shifted from if I would return to work and school, to how best 
to accomplish these goals.
    In July 1993, I started back to work at Senator Jeffords' 
office. With the help of the therapist at NRH, my workplace was 
designed to address my visual issues, and with the 
understanding of Senator Jeffords' office, I started with a few 
hours a day and then built back up to the amount I was working 
before the hemorrhage. By August, I was there.
    I restarted my law school classes at American University in 
January 1994 with an accommodation of time and a half for any 
test I took in class. I ultimately graduated in January 1995, 
and then took the bar exam in Maryland in February with the 
same time and a half accommodation. Needless to say, I was 
beyond pleased to pass on the first try.
    Following the bar exam, I began to work for Senator 
Jeffords in a full-time capacity. I started as a legislative 
correspondent and became his legislative counsel in 1996. I was 
also privileged to be Senator Jeffords' acting legislative 
director in 2006.
    Even though I was now putting in the long hours required of 
a legislative counsel, it was still important for me to 
continue to follow the strategies and techniques I had learned 
from the therapist at NRH.
    I stayed with Senator Jeffords up until his retirement from 
the Senate in January 2007, and then began the job hunt 
process. This raised a completely new set of questions for me 
to consider including how much I should disclose about my 
disability and past medical history.
    As my disability is not readily obvious, I did not always 
disclose it in an interview. There were plenty of interviews 
where I never discussed this topic, and I have sometimes 
wondered if decisions about me were made about some 
manifestation of my disability rather than my actual skills.
    The brain hemorrhage was a part of my life, an important 
component of who I am today, but I was concerned about the 
stigma attached to medical issues and disability. In many ways, 
I wish I had felt free to discuss the topic.
    My current employer, the National Disability Rights 
Network, is a membership organization for agencies that provide 
legal advocacy for people with disabilities, and I had no 
qualms about disclosing my brain hemorrhage and its effects up 
front. I felt comfortable that I would be judged on my 
qualifications rather than my disability.
    It has been my pleasure to work the last 5 years at NDRN 
and progress to my current position as deputy executive 
director for Public Policy. Working at NDRN and with the 
nationwide network of protection and advocacy agencies we 
represent has strengthened my belief that our country is better 
when we include people from all backgrounds including those 
with disabilities. While employing a person with a disability 
may require an accommodation, I believe the benefits far 
outweigh any costs.
    January 2013 will be the 20th anniversary of my brain 
hemorrhage. Testifying today has given me an opportunity to 
reflect on what enabled me to successfully return to work.
    First, a high level of family, friend, and coworker support 
was instrumental in my recovery.
    Second, the ability to have over 2 months of good inpatient 
therapy was critically important.
    Third, my desire to return to work along with Senator 
Jeffords' willingness to work with my therapist to make the 
accommodations necessary for me to return also made a 
difference. Fortunately, I was lucky to have all of those 
things in place, but many people who experience an acquired 
disability are not this lucky.
    I was reading to my son the other night from a ``Magic Tree 
House,'' book and there was a discussion of Alexander Graham 
Bell, and I thought a statement he had was pretty interesting. 
Basically, he always believed that when one door closed, 
another door opened and we spend a lot of time focused on the 
closed door. And I sort of feel like, in some respects, that 
people with disabilities sort of face that as they look--the 
closed door is that they look at just the disability and they 
sort of do not see the open doors, and the abilities, and the 
changes we can make to sort of move forward with a person with 
a disability in employment.
    As everybody else, I look forward to the opportunity to 
answer any questions anyone may have.
    [The prepared statement of Mr. Buehlmann follows:]
               Prepared Statement of Eric Buehlmann, J.D.
    Good morning Chairman Harkin, Ranking Member Enzi, and other 
members of the Health, Education, Labor, and Pensions Committee. I 
appreciate the opportunity to provide my personal perspective today on 
stay-at-work and back-to-work strategies.
    My story begins in January 1993. I was 24 years old and in my last 
semester of law school. In addition, I was working part-time as a Staff 
Assistant for Senator James Jeffords. During a pick-up game of 
basketball, I took a hit to the side and suffered a bad bruise. I 
noticed that after a few days, the bruise was not healing and I went to 
a doctor. They ran some tests, and I went to my law school classes as 
normal. When I returned to my apartment that afternoon, there was a 
message telling me to come to the hospital right away. They needed to 
see me.
    When I arrived at the hospital, they informed me that my platelet 
count, which normally should be 300,000-350,000, was only 3,000. This 
meant that my blood was having problems clotting. They ran another 
series of tests and ultimately diagnosed me with Idiopathic 
Thrombocytopenic Purpura (ITP). Basically, this means my spleen thought 
my platelets were bad, and removed them as fast as my bone marrow could 
produce them.
    Treatment for ITP is done more on an outpatient basis, so the 
hospital released me and I resumed my law school classes and work in 
Senator Jeffords' office. I was informed of some warning signs that 
would indicate that I would need to come back immediately to the 
hospital, but honestly being 24 years old, I didn't think much about 
that. Unfortunately, very shortly after my release I experienced the 
warning signs. I called my roommate and he rushed home to take me to 
the hospital. His key unlocking the door to our apartment is the last 
thing I remember for the next 2 weeks of my life.
    Later I was told, that by the time we arrived at Georgetown 
Hospital, I was complaining of being blind and I was unable to walk or 
stand up without assistance. I was placed into an MRI, to get a picture 
of the inside of my head, and was pulled out half way through the 
process because of the severity of the cranial bleeding. Hospital 
personnel immediately rushed me to surgery where a craniotomy was 
performed to relieve the pressure on my brain and try to stop the 
bleeding. The neurosurgeon removed part of the right occipital lobe of 
my brain during this surgery. There was still a concern that the ITP 
and the resulting low platelet count was going to lead to more bleeds, 
so it was decided to do a splenectomy. The doctors hoped that removing 
my spleen would raise the level of platelets in my blood. The 
splenectomy worked. My platelet count ultimately stabilized at an 
acceptable level.
    As I slowly became aware of my surroundings, the effects of the 
brain hemorrhage began to become apparent to me. First, I was paralyzed 
on the left side of my body. Second, my field of vision had been 
reduced and I was seeing nothing from my nose left as well as having 
trouble focusing to read. Third, it was difficult for me to sustain my 
focus for any length of time without becoming overly tired, and it was 
also difficult at times for me to articulate thoughts and ideas.
    This was definitely a down time in my recovery as I was becoming 
exceedingly bored spending my days in bed, doing very little other than 
watching television and sleeping. This all changed the day the 
therapists at Georgetown came and began to start a course of therapy. 
Therapy gave me something to do, something to work on, and added 
interaction with people.
    After 3 weeks at Georgetown University hospital, I was transferred 
to the National Rehabilitation Hospital (NRH) to begin more intensive 
in-patient therapy. While there I did physical, occupational, speech, 
and vocational therapies. I also had individual sessions with a 
neuropsychologist who helped explain what the effects of the brain 
hemorrhage were. I also had group sessions with others that had 
experienced a traumatic brain injury. I found these individual and 
group sessions extremely helpful in understanding what had happened to 
me, and in letting me know that others were struggling with the same 
issues I was struggling with every day.
    During this time at NRH, Senator Jeffords came for a visit and we 
talked about work. While it was unclear if, or when, I would be able to 
return, he stated that they were looking into accommodations to help 
with my return. As I wasn't yet walking at that point, one of the 
issues they looked into was spacing between the cubicles and making the 
office wheelchair accessible. Throughout my stay at NRH, Senator 
Jeffords' office had discussions with my therapists about 
accommodations necessary for my desk space, and the best way to bring 
me back in terms of the length of the workday.
    After a little more than 2 months at NRH, I left in different shape 
than I had entered. I was walking at that point; better able to 
articulate my thoughts and ideas; had a higher and longer level of 
attention; and could get my eyes to focus together which allowed me to 
read again. Some effects of the brain hemorrhage still existed, like 
the reduction of my field of vision, I would get tired and neglectful 
sooner than before, and I continued to have some difficulty with word 
retrieval at times. However, the therapists at NRH had taught me a lot 
of strategies and techniques to help me compensate.
    I continued to do outpatient therapy at that point for a couple 
more months, but my focus shifted from if I would return to work and 
school, to how to best accomplish these goals. I had discussions of my 
situation with both Senator Jeffords' office and the American 
University School of Law, and settled on a plan to restart work first 
with a smaller set of hours per week, but building them up to the 
amount I was previously working over the course of a couple weeks. As 
for school, I would restart in January 1994 and complete the last 
semester of law school over the course of the year.
    So, in July 1993, roughly 6 months after my hemorrhage, I started 
back to work in Senator Jeffords' office. With the help of the 
therapists at NRH, my workspace was designed to best address my visual 
issues, and with the understanding of Senator Jeffords' office I 
started with a few hours a day and then built back up to the amount I 
was working before the brain hemorrhage.
    It was important for me to listen to my body and understand when I 
needed to take a break or I was going to become over tired. I could not 
spend hour after hour looking at a computer screen or reading every 
day. I also needed to plan my travel schedule much more as I was not 
able to drive. Finally, I needed to position myself properly in 
meetings to ensure that I was not missing anything, and that I was able 
to appropriately interact with everyone. By August, I was back to my 
previous workload, thanks to the work of my therapists, the support of 
my family and friends, and willingness of Senator Jeffords to provide 
accommodations.
    As I mentioned earlier, I restarted my law school classes at 
American University in January 1994 with the understanding that I would 
complete the last semester of work over the course of the year. I also 
received an accommodation for time and a half for any test I took in 
class. With these accommodations, I was able to complete law school and 
graduated in January 1995. I then took the bar exam in Maryland with 
the same time and a half accommodation in February and was beyond 
pleased to pass it on the first try.
    Following the bar exam, I began to work for Senator Jeffords in a 
full-time capacity. I started as a legislative correspondent in 1995 
and became his legislative counsel in 1996. Even though I was now 
putting in the long hours required of a legislative counsel, it was 
still important for me to continue to follow the strategies and 
techniques I had learned from the therapists at NRH. I still needed to 
listen to my body and take breaks from just sitting in front of the 
computer or reading all day and I needed to position myself well in 
meetings so I did not miss anything that was occurring.
    During my time with Senator Jeffords as his legislative counsel, I 
handled a variety of issues, including: Federal employees; banking, 
housing and insurance; labor law; judiciary-related issues, including 
abortion and gun control, and campaign and election law, including the 
enactment in 2002 of the Snowe-Jeffords provisions on electioneering 
communications. I was also privileged to be Senator Jeffords acting 
legislative director in 2006.
    I stayed with Senator Jeffords up until his retirement from the 
Senate in January 2007, and then began the job hunt process for the 
first time since I had suffered my brain hemorrhage. This raised a 
completely new set of questions for me to consider, including how much 
I should disclose about my disability and past medical history. This 
was a struggle for me.
    As my disability is not readily obvious to the casual observer, I 
did not always disclose my past medical history in an interview. A lot 
depended on my comfort level with the organization I was interviewing 
with and the questions that were asked. There were times that I was 
asked about the most difficult situation I had to overcome, and if I 
felt comfortable, I would discuss my recovery process from the brain 
hemorrhage. However, there were plenty of interviews where I never 
discussed this topic, and I have sometimes wondered if decisions about 
me were made on some manifestation of my disability, rather than my 
actual skills.
    The tightrope I felt like I was walking along was the fact that the 
brain hemorrhage was a part of my life, an important component of who I 
am today, countered by concern of the stigma attached to medical issues 
and disability. In many ways, I wish I could have felt free to always 
discuss the topic, as it is such an important part of who I am, and I 
think it makes for a better interview and discussion of who I am and 
what I would bring to a job.
    For example, my current employer, the National Disability Rights 
Network (NDRN), is the membership organization for agencies that 
provide legal advocacy for people with disabilities, and I had no 
qualms about disclosing my brain hemorrhage and its effects up front. I 
felt comfortable that I would be judged on my qualifications rather 
than my disability. Because of that, I freely discussed my past and 
challenges I faced, and issues I still faced from the brain hemorrhage, 
and I felt it was one of the best interviews in my search for a new 
job.
    It has been my pleasure to work, the last 5 years, at NDRN and 
progress to my current position as deputy executive director for public 
policy. Working at NDRN, and with the Protection and Advocacy agencies 
all around the country which we represent, has strengthened my belief 
that our country is better when we include people from all backgrounds, 
including those with disabilities. While employing a person with a 
disability may require accommodations, I believe the benefits far 
outweigh any costs.
    January 2013, will be the twentieth anniversary of my brain 
hemorrhage. Testifying today has given me an opportunity to reflect on 
what worked to help me successfully return to work. First, a high level 
of family, friend, and coworker support was instrumental in my 
recovery. Knowing that I had a strong system of support allowed me to 
focus on my rehabilitation. Second, the ability to have over 2 months 
of good in-patient therapy was critically important. Being able to 
immerse myself in therapy pretty much every waking hour, 7 days a week 
allowed for a better recovery than would have been possible if I only 
did a little in-patient rehabilitation and then shifted to out-patient 
therapy. My strong relationship with Senator Jeffords and my desire to 
return to work, along with Senator Jeffords' willingness to work with 
my therapists to make the accommodations necessary for me to return to 
work (looking at office design, workspace layout, and work schedule) 
also made a big difference. Fortunately, I was lucky to have all of 
those things in place, but many people who experience an acquired 
disability are not this lucky.
    Again, thank you for the opportunity to tell my story today, and I 
look forward to answering any questions you may have.

    The Chairman. Thank you very much, Mr. Buehlmann.
    And now, for last, we will turn to Dr. Ken Mitchell. 
Welcome. Please proceed, Dr. Mitchell.

STATEMENT OF KENNETH MITCHELL, Ph.D. MANAGING PARTNER, WORK RX 
                  GROUP, LTD., WORTHINGTON, OH

    Mr. Mitchell. Thank you, Senator Harkin, chairman. Senator 
Alexander, thank you for having the opportunity to share with 
you a point of view this morning.
    My message this morning is a simple one. That is, to 
increase return-to-work outcomes over the next decade, we are 
going to have to think differently about going back to work and 
staying at work with an impairment.
    Thinking differently means that we have to move away from 
the current compensation claims focus programs and risk 
management model. What we need to do is employers, and 
insurers, and those people associated with them have to embrace 
a health and productivity developmental approach. Such a model 
creates a stay-at-work and return-to-work culture at the 
worksite, offering specific responsibilities and timely action. 
This model also reduces the likelihood of what we refer to as 
bureaugenic disability, that is, disability created by the 
corporate policies and practices.
    By creating the return-to-work culture, employers and 
employees become engaged in strategies that protect the 
individual's current productivity and long-term employability. 
Correspondingly, this culture supports hiring of employees with 
existing impairments. Also, we understand that past legal and 
legislation dealing with disability encourages compliance with 
the law, but does not encourage a culture of return-to-work.
    Oftentimes employers ask us, ``Do return-to-works make a 
difference? Do the return-to-work programs, stay-at-work 
programs actually make a measurable impact?'' The evidence is 
clear: they do. We know what return-to-work strategies work and 
we know those that do not. Individuals who return to work in a 
safe and timely manner do much better than those that do not.
    We have a good understanding of why a person does not go 
back to work. When a person is unsuccessful in their return-to-
work efforts, unnecessary costs are experienced by everyone: 
the employer, the employee, the healthcare provider, the 
community in general.
    We certainly know what the next decade's workforce is going 
to look like. On the whole, it is going to be older, more prone 
to impairment, but with a high interest and need to continue 
working. Women between the ages of 50 and 60 will be the 
largest single workgroup in that next decade's workforce.
    With that, we have to look at return-to-work realities. 
Every long-term disability starts with a short-term work 
disruption. That is the time to act, not when a claim is filed. 
To reduce or prevent long-term disability, one must move 
upstream and make an impact at the time of injury, illness, and 
onset of the symptoms. Please accept this as a blueprint for 
moving forward and thinking differently about return-to-work.
    First, we have to create timely access. We always talk 
about early intervention, but early intervention is relative. 
What we need to do is create an access to the point where the 
individual, that is, the employer needs to embrace and embed 
return-to-work policies in the fabric of the employment 
setting. That is, when the person is hired, when there is 
performance management issues, when safety and wellness 
programs are being initiated, return-to-work has to be embedded 
in that particular discussion, not at the time of injury/
illness where it currently is applied.
    We also know that the return-to-work decision is made, all 
too often, too early or too late, in isolation, with faulty or 
incomplete information. And so, from that standpoint, we need 
to move in this health and productivity return-to-work model to 
a shared decisionmaking model.
    In this particular shared decisionmaking model, we need to 
bring together the employer, the healthcare provider, and the 
insurer to really talk about the actual treatment options, 
surgery or no surgery, preferences in terms of style, and how 
to go back to work; and most importantly, the consequences of 
going back to work or not going back to work, the consequences 
of one treatment versus another treatment. From that 
standpoint, the shared decisionmaking model is one that we 
believe begins to bring together the opportunity to reduce that 
gap that often we see in the return-to-work planning.
    Then, one of the several things that we need to pay 
attention to is when we talk about going back to work, people 
say, ``When?'' It is not so much ``when,'' but ``how,'' and 
that way, we have to create return-to-work pathways and that is 
set by accommodations, transitions, and return-to-work 
planning.
    And finally, we know in terms of those individuals and 
employers who stay engaged with the employee, they have a 
greater chance of bringing that person back to work or keeping 
them back to work. We must be able to establish incentives for 
employers to stay engaged with their employees, not to create a 
workforce that is moving in and out of the organization. Such 
strategies help to develop engagements, pay dividends in 
returning a person back-to-work because you are able to guide a 
person in establishing the plan. You are able to create 
milestones and assess progress, and then you are in a position 
to adjust a treatment plan both in terms of intensity and 
direction that allows for the accommodation of that person 
requiring and increasing their work functions.
    It is building that return-to-work program and that return-
to-work plan embedded into a health and productivity culture in 
which return-to-work succeeds and prospers. And with that, a 
comprehensive cohesive plan makes a difference in return-to-
work planning, both at the corporate level, at the insurance 
level, and at the individual level.
    Thanks again for an opportunity to share these points of 
view.
    [The prepared statement of Mr. Mitchell follows:]
             Prepared Statement of Kenneth Mitchell, Ph.D.
    Going back to work following a work disrupting injury, acute 
illness or chronic disease produces measurable benefits for the 
employee, the employer and the community in general. Individuals who 
are able to return to work in a safe and timely manner report greater 
financial and emotional well-being, reduced need for healthcare 
services and greater life satisfaction than those who do not return to 
work. Employers who offer return to work programs report less 
absenteeism and shorter times off work. Healthcare costs per employee 
are reported to be measurably reduced with the application of return-
to-work programs. Investing in strategies to protect the productivity 
of the workforce offers a clear return-to-work dividend for all 
involved. Evidence-based research highlights the conditions for an 
effective return-to-work program. Four building blocks serve as the 
foundation for an effective and sustainable return-to-work program: 
timely access, shared decisionmaking, return-to-work planning supported 
by stay-at-work and return-to-work investments/incentives.
    The Return to Work Dividend: Protecting Productivity. The essence 
of any return-to-work strategy is about protecting the long-term 
employability and productivity of the individual. Productivity goes 
beyond completing certain tasks over time. Productivity contributes to 
a sense of achievement and mastery, as well as a tangible measure of 
personal worth. When an individual's capacity to be engaged in 
productive activities is temporarily disrupted by an injury, illness or 
chronic disease, the individual, and those who support and benefit from 
his or her productivity are affected as well. How the individual, in 
concert with the employer, healthcare provider and insurance partners, 
responds to this disruption, influences the decision to stay at work, 
return to work or take a different path. Staying at work or returning 
to work is a process made up of a series of shared decisions, 
preferences, options and consequences influenced by specific values and 
judgments of those involved.
    By any measure, stay-at-work (SAW) and return-to-work (RTW) are 
collaborative efforts by a number of stakeholders, each with a set of 
self interests and expectations. When these self interests and 
expectations are appropriately aligned, return-to-work success is 
highly likely. When the self interests compete, collide or take on an 
adversarial nature, the process is disrupted, delayed and becomes 
unnecessarily costly for all parties.
    Debate continues regarding the value, effectiveness and best 
strategies of a stay-at-work or return-to-work program. This debate has 
sharpened with the current economic realities, emerging workforce 
patterns and health care cost trends. The economic viability of the 
Social Security Disability Insurance Program (SSDI) and the connections 
with the private disability insurance industry has become a critical 
part of the return-to-work equation.\1\ Thoughtful innovation and 
collaboration are critical to meet this challenge. This testimony is 
guided by the following questions.

    1. What value and impact do SAW/RTW programs have?
    2. What SAW/RTW strategies work and why?
    3. What are the benefits and limitations of disability insurance in 
protecting an individual's productivity?
    4. Why and how do employers encourage employees to continue to be 
productive with impairment?
    5. What SAW/RTW strategies need to be developed over the next 
decade?

    1.0 The Value and Impact of SAW/RTW Programs. The SAW/RTW debate 
focuses on two core questions, (1) Do stay-at-work and return-to-work 
programs have an impact? And (2) If so, how can these programs be 
applied in the most effective and timely manner? The evidence is clear. 
Stay at work and return- to-work programs make a measurable, positive 
impact.\2\ The challenge is in the commitment to and the timing of the 
applications. Research over the past 10 years supports the following 
conclusions.

    1.1 Proactive RTW programs reduce lost time costs, increase 
employee satisfaction and benefit the employer.\2\ \3\

     Significant decreases in absenteeism and workers 
compensation claims can result when RTW programs are integrated in 
health and wellness strategies: e.g., 28 percent decline in absenteeism 
and 30 percent decline in WC/disability claim costs.
     Employees who are satisfied with their employer's response 
to injury or illness return to work 50 percent faster with 54 percent 
lower cost.
     A study of California employers showed that formal RTW 
programs led to a 3-4 week reduction (from 9 weeks to 6.2 weeks) in 
time to RTW for injured employees and demonstrated that reduction in 
time to RTW (beyond just 1.4 weeks for lower wage workers employed by 
large firm) can lead to a net savings for the employer.

    1.2 Multiple factors independent of an underlying medical condition 
influence return to work and supportive work environments facilitate 
successful and sustained RTW.\4\ \5\ \6\ \7\ \8\

     Supportive work environments are highly predictive of 
successful RTW. Workers in highly supportive organizations are 4 times 
more likely to successfully function at work after returning to work.
     Employers with Employee Assistance Programs (EAP) average 
21 percent lower absenteeism rates and 14 percent higher productivity 
(Harte, ET al. 2011 cite 24) and employees who use EAP on disability 
return to work an average of 14.5 days sooner.
     Developing a suite of RTW ``Best Practices'' such as 
developing formal, written policies and procedures that apply across 
the organization creates a consistent and cohesive SAW/RTW framework.
     When opportunities for transitional work or light duty 
assignments are available, disabled individuals are twice as likely to 
successfully resume work following an injury.
    2.0 What Strategies Work and Why? Recognizing the real and 
potential barriers to a return-to-work program is critical. 
Correspondingly, understanding the conditions that support a timely 
return to work is also valuable. The following evidence-based 
indicators offer the RTW developer, along with corporate executives and 
public policy leaders a blueprint to building effective programs.\9\ 
\10\ \11\
    2.1 What Increases the likelihood of going back to work? The 
following factors improve RTW outcomes.

     The worker's belief in a high probability of returning to 
work.
     Flexible employee benefits that support continued work 
with an impairment.
     Ability to cope with change and multiple stressors.
     Non-hostile work environment.
     Timely application (within the first 30 days of an injury 
or illness) of return-to-work programs.

    Flexible employer policies, management style and a non-hostile work 
environment appear to be the top indicators for increasing the 
likelihood of a safe and timely return to work.
    2.2 What Reduces the Likelihood of Going Back to Work? Substantial 
evidence indicates the lack of success in returning to work does not 
result exclusively from the actual medical problem. Rather, a 
constellation of common psychosocial and bureaugenic (corporate 
practices and benefits) factors sabotage the return-to-work effort.
    These factors include:

     Low value of work, negative work environment, low job 
satisfaction.
     A belief that recovery to previous work function is 
unlikely.
     Presence of multiple impairments, poor medical outcomes.
     Greater psychological stress, multiple life disruptions.
     Receiving injury compensation with low economic status.
     Distrust of employer and/or insurance provider by the 
disabled individual.
     Delayed return-to-work planning efforts (> 30 days after 
injury or illness).

    3.0 Disability Insurance and Return to Work: Disability insurance 
(DI) is a crucial part of the financial safety net for individuals who 
are impaired and unable to work. Disability insurers are critical 
players in the stay-at-work and return-to-work process. The DI products 
and the accompanying services are built upon: (1) Eligibility for the 
benefit, (2) Meeting a legal definition of disability and (3) 
Subscribing to underwriting--risk management principles. Disability 
insurance is not an entitlement program, but an income replacement 
benefit to individuals who are unable to work and are covered under a 
negotiated contract, employee benefit plan or State or Federal 
legislation.
    Disability insurance and efforts to maintain a person at work or 
returning a person to work are not natural partners. In their purest 
applications, there are competing self interests among the insurer, the 
claimant and the employer policy holder. Risk management, which is an 
integral part of any insurance program, creates substantial barriers to 
mitigating the impact of the impairment. Figure 1 illustrates RTW rates 
aligned with various benefit plan time lines.\11\

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Once Individuals enter into an adversarial relationship with the 
employer and the insurer, they must commit significant time, energy and 
resources in proving that they are unable to work. The likelihood of 
these individuals returning to work in any reasonable time is extremely 
low. The disability insurer needs to offer a business model that 
reduces the competing interests. Private disability insurance carriers 
have done this. The public SSDI program has not.
    The SSDI program reports RTW rates of less than 10 percent. Private 
disability insurers report RTW rates of 60 percent to 80 percent for 
short-term disability (< 6 months off work). For long-term disability 
claims (greater than 6 months off work) private disability insurers 
report an estimated 20 percent to 25 percent RTW rate depending on the 
impairment type. It is clear that private disability insurers are more 
successful in supporting a safe and timely return to work. There are 
four specific reasons for the differences. They are:

    1. Early access to the claimant and employer.
    2. Incentives to provide return-to-work services.
    3. A measurable investment in dedicated RTW programs run by skilled 
RTW professionals.
    4. The provision of stay-at-work (SAW) and return-to-work (RTW) 
incentives to both the employer and the disabled person.

    Table 1 presents the key elements that produce the differences in 
return-to-work outcomes.

             Table 1.--Contributing Factors to RTW Outcomes
------------------------------------------------------------------------
                                  Private Disability   Public Disability
             Factor                     Insurer         Insurer (SSDI)
------------------------------------------------------------------------
Access to Claimant & Employer...   Contact     Six-month
                                   with claimant       time off work to
                                   within days of      be eligible.
                                   filing of claim.    High
                                   Claims      initial non
                                   adjudication        approval rate (65
                                   process is          percent).
                                   completed within    One year
                                   5 to 7 days.        wait for an
                                   RTW         appeals hearing.
                                   expectations        Employer
                                   defined early or    unlikely to be
                                   prior to claim      involved at time
                                   filing.             of claim filing
                                   Employer    and beyond.
                                   fully engaged.
Incentive to Provide RTW           Insurer     No
 Services.                         receives            financial
                                   measurable          incentive to
                                   benefits with a     return the
                                   successful return   individual to
                                   to work such as:    work.
                                   reduced claims      Any cost
                                   costs, reduced      savings are not
                                   reserves and a      redirected to the
                                   satisfied           SSA or the Trust
                                   corporate           Fund.
                                   customer.
Dedicated RTW Services..........   Insurer     No
                                   invests in          dedicated RTW
                                   dedicated return-   resources.
                                   to-work services    May apply
                                   with defined        private RTW
                                   responsibilities    contractors or
                                   and measurable      State vocational
                                   accountability.     rehabilitation.
Provide Stay at Work (SAW) and     Insurer     Various
 Return to Work (RTW) Benefits.    Includes            benefit and
                                   additional cash     health care
                                   benefit for         protection to the
                                   claimant--Partial   claimant for
                                   awards.             participating in
                                   Able to     the RTW process.
                                   cover work site
                                   accommodations.
------------------------------------------------------------------------

    4.0 Why Do Employer's Use Return to Work Programs? The Burton Blatt 
Institute (BBI) at Syracuse University, in concert with its Employer 
Research Consortium (ERC), is currently engaged in a unique exploration 
of the decisionmaking of employers in applying return-to-work programs. 
Preliminary findings from the National Study on Employers' RTW Policies 
and Practices \12\ found in a sample of 172 employers that 44 percent 
of respondents reported offering a formal return-to-work program. 
Forty-three percent reported offering an informal return-to-work 
program. The remaining employers (13 percent) reported offering neither 
formal nor informal return-to-work programs or services. Preliminary 
findings from this exploratory study offer interesting insights to 
employer practices. For example:
    4.1 Why Have a RTW Program? One of the principle research questions 
of the RTW Survey was ``Why does your organization have a formal 
return-to-work program?'' The top five responses were:

    1. Was the right thing to do.
    2. Made good economic sense for the organization.
    3. Needed to reduce lost time.
    4. Considered RTW services to be a best practice for their HR 
programs.
    5. Part of overall corporate strategy to control medical and lost 
time costs.

    The top five responses to the question, ``Why do you have an 
informal return-to-work program'' were:

    1. Was the simplest to implement.
    2. Offers more flexibility.
    3. Lacks internal resources to implement a formal program.
    4. A formal program was determined not to be necessary to achieve 
RTW goals.
    5. Formal programs not required by State or Federal regulations.

    The top five reasons offered as to why employers did not offer a 
return-to-work program were:

    1. Lost time is not an issue, managing lost time not a priority.
    2. Too many competing interests along with too many operational 
sites.
    3. Any changes made in the organization take time and are 
complicated.
    4. No internal champion to move program forward.
    5. Tied--No light duty jobs available. Not required by State of 
Federal regulations.

    The early conclusions of the National Study on Employer RTW 
Policies and Practices suggest:

     65 percent to 70 percent of participating employers 
reported lost time and the associated costs to be a significant, 
ongoing issue for the organization.
     87 percent of participating employers consider return-to-
work programs as valuable elements of their efforts to control lost 
time and reduce the associated costs.
     The primary reasons for implementing a formal or informal 
program were: (1) it was the right thing to do and (2) resulted in 
reduced lost time along with a reduction in the associated costs.

    4.2 RTW Program Elements: The BBI/Syracuse National RTW study 
identified the following strategies to be essential parts of an 
employers' support for a safe and timely continuation or resumption of 
work.
Essential Strategies

     Transitional work--incremental resumption of work tasks 
during a well-defined timeframe.
     Limited light duty assignments to maintain safe work 
function during periods of impairment.
     Written RTW policies that define the RTW process with 
specific guidelines and accountabilities.
     Work site accommodations applied to protect against lost 
function.
Commonly Used Strategies
     Use of individual RTW plan.
     Work conditioning programs to increase work capacity 
during transitions--Ergonomic assessments.
     Designated RTW Coordinator.
     Supervisor education about RTW policies and practices.
Less Commonly Used Strategies
     Transitional work fund.
     Behavioral health assessments.
     Physician education.
     On site medical unit.

    5.0 Blueprint for the ``2020'' Workforce. The following SAW/RTW 
Program Blueprint offers employers, public and private disability 
insurers, healthcare providers, as well as public policy developers a 
RTW Development strategy to meet the demands of the American workforce 
over the next decade.
    5.1 Investment vs. Entitlement. To achieve RTW dividend tangible 
investments need to be made. Developing return-to-work strategies is an 
investment in protecting the productivity of the worker. Investments by 
all key stakeholders are required. For example:

     Employers who invest in SAW/RTW policies and practices 
create a health and productivity (H&P) culture that: (1) Addresses job 
performance issues prior to a lost time event; (2) Creates flexible 
policies and work place benefits that respond to emerging health-
related impairments; (3) Communicates that a return to work is expected 
and (4) Guides the employee in how to stay at work or return to work in 
a safe and timely manner through a fair and consistent process.
     Disability & Health Insurers who invest in a fair and 
timely adjudication of lost time claims, as well as offer targeted 
employer incentives protect the employee's productivity. The disability 
insurer who invests in a dedicated RTW planning and coaching service 
supports clear pathways back to work. The healthcare insurer invests 
with incentives for participating physicians to include return-to-work 
planning as part of the treatment plan.
     Employees who invest their time and energy to become fully 
engaged in the treatment plan and return-to-work planning provides the 
answer to the basic RTW question, ``Who is accountable for helping the 
individual back to work?'' One person! The disabled employee needs to 
be accountable for solving his or her health and productivity 
predicament. Guidance and support need to be readily available for 
those who become stuck.
     Healthcare providers are placed as the primary advocate 
and RTW gatekeeper for the disabled worker. The medical community must 
invest time and talent to participate in a shared decisionmaking 
process. Shared decisionmaking introduces evidence-based medical 
practices with return-to-work options, preferences and likely 
consequences into the treatment plan. The physician moves from an 
advocate or adversary to become a true SAW/RTW partner.
    5.2 Understand the nature and scope of the ``2020'' workforce. 
Developing SAW and RTW strategies is based on the nature of the target 
workforce over the next decade. The ``2020'' workforce offers:

     Scope. Forty percent of Americans who are 55 or older were 
in the workforce in 2011.\7\
     Expectations. Seventy-four percent of respondents in a 
Wells Fargo survey \13\ expect to work in their retirement years; 47 
percent say they will do ``similar work'' to their pre-retired years.
     Critical Work Group. Female labor force participation is 
increasing: 68 percent of women 55-59 worked in 2011 as compared to 48 
percent in 1975. Women between the ages of 40 and 60 will be the 
largest single worker cohort in the American workforce over the next 
decade.\14\
     Epidemiology. Almost 50 percent of Americans have one 
chronic health condition and of this group, nearly half have multiple 
chronic conditions.\7\
    5.3 Move to a Health and Productivity RTW Model. Returning to work 
or staying at work with impairment involves a series of decisions 
directed by personal values, judgment, and the capacity to solve the 
health and productivity predicament facing the individual. The current 
disability insurance risk management model applied by both public and 
private disability insurers does not recognize this. This model works 
in absolutes, that is, medical evidence determines whether or not you 
are disabled. Unfortunately, disability is subjective and depends on 
factors other than medical evidence. The risk management model offers 
limited interest in time or capacity to help the individual develop or 
regain work function.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    The Health and Productivity RTW model (Figure 2) recognizes the 
realities of the various contributors as to why a person is unable to 
work. More importantly, it recognizes the strategies that can be 
applied in a timely fashion (e.g., prior to the lost time event) to 
increase the likelihood of a person staying at work or returning to 
work. The principle elements of the Health and Productivity (H&P) RTW 
Model and their public and corporate policy implications are:
    5.3a Timely Access. Individuals appear to make return-to-work 
decisions near the onset of the disabling event, onset of symptoms and 
diagnosis. These decisions are often made based on current events or 
conditions at work and in their social/family environment, often 
supported by incomplete/inaccurate information.

     RTW expectations can be made at the time of hire, during 
safety and benefits meetings, integrated into labor management 
agreements and wellness/risk reduction programs.
     Timely access creates opportunities to identify and 
develop the skills the individual will need to engage in the stay-at-
work or return-to-work process.
     Early access creates the opportunity to recognize and 
mitigate job performance and employee or labor relation issues that are 
cloaked as health and disability problems.
Public and Corporate Policy Implications
     Short-term disability Insurance benefits with the 
companion return-to-work planning resources become linked or made part 
of public DI programs to insure early access.
     The Public Disability Insurance (SSDI) program needs to 
connect with employers in a way that creates a measurable economic 
incentive for the employer to support the employee at work or enable 
the individual to return to work in a timely fashion.

    5.3b Shared Decisionmaking. Returning to work is a series of 
decisions made by the employer, employee and the participating 
healthcare and disability insurance partners. Applying a shared 
decisionmaking model offers the opportunity to apply accurate 
information efficiently across the participating stakeholders. Clear 
options, preferences and most importantly, consequences are defined.

     Public/Private Disability Insurers and medical providers 
who invest in developing a shared decisionmaking model link the key 
participants in an informed decisionmaking process.
     Evidence-based RTW strategies should be included in the 
decisionmaking process defining the most likely approaches that support 
a stay-at-work or return-to-work effort.
     Appropriate assessment tools should be used to identify 
the individual employee's strengths, capacity for good judgment and 
decisionmaking as well potential psycho-social barriers to the return-
to-work process.

Public or Corporate Policy Implications
     Support research into the applications of shared 
decisionmaking as part of the disability claims and return-to-work 
process.
     Shared decisionmaking strategies are embedded in the 
employer and insurer's health and productivity management programs.

    5.3c SAW/RTW Planning. There are three elements to a formal RTW 
plan: Clarity, Simplicity and Integration.

     Clarity. Ambiguity is a friend only to those who may have 
a different agenda than going back to work following an injury or 
illness. Creating an unambiguous RTW plan offers clear expectations and 
direction.
     Simplicity. Individuals who have difficulty returning to 
work may have limited capacity or knowledge to navigate the SAW/RTW 
process. The RTW Plan creates the ``How'', a road map to stay or go 
back to work. The RTW plan offers all stakeholders clear direction with 
a reasonable, but flexible time table.
     Integration. The RTW Plan integrates the treatment plan 
with the RTW options. The attending physician can accurately calibrate 
the success of the treatment plan and make appropriate adjustments in 
the intensity and direction of the care.

Public or Corporate Policy Implications
     A return-to-work plan needs to be incorporated as a ``best 
practice'' by employers, disability insurers and healthcare providers 
as the guide to develop and support any RTW decisions.
     Specific skill development programs for RTW planners/
coaches are recommended in dealing with and managing ambivalence and 
resistance to going back to work.

    5.3d SAW/RTW Incentives. Common sense strategies can include 
various incentives to protect productivity.

Public or Corporate Policy Implications
     Employers should require a demonstration of SAW/RTW 
programming as they select health and disability insurance programs for 
their employees.
     Federal contractors should demonstrate clear SAW and RTW 
practices around recruitment, retention and promotion of people with 
disabilities under Section 503 of the Rehabilitation Act.
                              Bibliography
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to-work programs? RAND Institute for Civil Justice paper prepared for 
the Commission on Health and Safety and Workers' Compensation. 
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Hartenbaum, N.P., Hudson, T.W., ET al. (2011). ACOEM Guidance 
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Environmental Medicine, 53 (6), 695-702.
    8. How Do Organizational Policies and Practices Affect Return to 
Work and Successful Work Role Functioning Following an MSD Injury? 
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www.iwh.on.ca/plenaries/2011-jan-18.
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Securing behavioural and cultural changes Presentation at SEAK Worker's 
Compensation & Occupational Medicine Conference, July 2011, Hyannis 
Port, MA.
    10. Disability Management Employers Consortium. (2010). Foundation 
for Optimal Productivity: The Complete Return to Work Program Manual.
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& Disability Benefits Systems: The Work Disability Model,'' keynote 
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International Workers' Compensation Foundation (June 10, 2008), 48.
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RTW Study in Employer Policies and Practices, May 2012, Burton Blatt 
Institute, Syracuse University, Syracuse, NY.
    13. Wells Fargo (2011) News Release: 80 is the new 65 for many 
middle-class Americans when it comes to retirement, Wells Fargo 
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20111116_80lsTheNew65.
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Acknowledgments

    Special thanks go to:

     The Burton Blatt Institute at Syracuse University for its 
support for the National RTW Study.
     Carol Cirka, Ph.D. Associate Professor and Chair, 
Department of Business and Economics at Ursinus College, Philadelphia 
PA, who provided the extensive research and editorial support.
     Jennings Mace, Ph.D. for his editorial support.

    The Chairman. Well, Dr. Mitchell, thank you very much for a 
very profound statement.
    I know Senator Alexander has to leave shortly, and I am 
going to yield to Senator Alexander for any statement or 
questions he might have for the panel.

                     Statement of Senator Alexander

    Senator Alexander. Thanks, Mr. Chairman. That is a great 
courtesy.
    I have enjoyed the testimony I have heard. I read the other 
testimony, and I have a meeting of a committee, of which I am 
the ranking member, at 11. So I thank Senator Harkin for his 
customary courtesy.
    I especially wanted to welcome Tom Watjen who, from the 
presidency of the Unum Group in Chattanooga, that is a Fortune 
250 company, as he has already testified, has about 3,000 
employees in our State. And is really in the business of 
helping employers help their employees return to work after 
they have been sick or after they have been injured.
    Last year, and I know you mentioned this in your earlier 
testimony, but I would like to go back to it a little bit, if I 
may, Mr. Watjen. You came by my office and we talked about a 
Charles River survey that you had done about income protection 
for employees.
    Could you summarize, again, the two or three key findings 
you gathered from that? How that has affected your policies of 
devising products or strategies to help employers help their 
employees get back to work after they have been hurt or 
injured?
    Mr. Watjen. Certainly, Senator. It is nice to see you, 
Senator. Thank you very much and I will.
    The Charles River study actually was a very important 
process that we went through. We started it about 2 years ago, 
actually, because whereas we can see tremendous value each day 
for the things we do for our customers during their time of 
need, what we can do for employers helps them deal with a very 
critical absence of an employee. We were struggling a little 
bit to figure out how can we connect with some of the broader 
things that are happening, especially here in Washington? And I 
think that is what drove the decision to do the study.
    What we found, actually, was things that quantified things 
that are intuitive, which is, the more people take personal 
responsibility for their own affairs, frankly, it is good for 
them and it is good for being able to be sure our public 
assistance programs are only there for people who desperately 
need it. So, it quantified much of that.
    As you saw from my testimony, one of the things we found 
for those that do have private disability insurance, which is 
roughly 30 percent of those in the workforce today, the sheer 
fact that they have the ability to draw from that coverage, 
both in terms of the financial protection plus the return-to-
work services they had, really prevented about 575,000 to 
600,000 individuals per year from having to seek public 
assistance, which saves the Government about $4 to $5 billion a 
year.
    Senator Alexander. Why is the percentage only about one-
third of people have that kind of private insurance?
    Mr. Watjen. We struggled as an industry, frankly, to raise 
the awareness. And as you saw from my testimony, one of the 
things people really often do not appreciate is the fact that 
over the course of their working careers probably 30 percent of 
the individuals actually suffer some disabling experience which 
will keep them out of work for 6 months or more. And again, as 
you know, the fragility of Americans today, many people cannot 
cope very adequately with the loss of an income.
    Senator Alexander. Well, you----
    Mr. Watjen. We have had a real education issue to make that 
need better understood both at the employer level, but also at 
the individual consumer level.
    Senator Alexander. But your customer is the employer, 
right?
    Mr. Watjen. Right, it is.
    Senator Alexander. So you have to persuade him or her that 
it is good for the business.
    What do you tell them? It is going to cost them more money.
    Mr. Watjen. It is, but it is actually surprisingly 
inexpensive. For $20 or $30 a month per employee per year--per 
month, you can actually get very basic coverage for your 
employees.
    Senator Alexander. Does the research show that it is a 
benefit that employees notice or are employees not very aware 
of this?
    Mr. Watjen. No, they notice it and especially when they see 
a coworker, for example, who may not have had the coverage, and 
have a condition like this emerge where they did not have 
either the financial support or the return-to-work resources to 
get them back to work. And they can see, firsthand, how that 
can have a dramatic impact on the family because, again, as 
good as the public assistance programs are you cannot 
adequately replace the loss of income by seeking Federal 
support. It is just not possible.
    Senator Alexander. This committee, and the Congress, has 
struggled with what we call ``The Class Act,'' which is part of 
the health insurance law, and there were concerns about its 
financial viability when it passed. President Obama's 
Department of Health and Human Services has raised some 
questions.
    What has our discussion about that, about the Class Act, 
had on the services that you provide?
    Mr. Watjen. It is an interesting question, because there is 
the coverage that one gets while they are actively engaged in 
the workplace, which is really what income protection and 
disability is. The Class Act was really referring more to long-
term care which----
    Senator Alexander. Yes.
    Mr. Watjen. Gets more to when you are not working, frankly. 
What support do you have at times, which obviously is a 
significant issue for society in terms of the aging population?
    Senator Alexander. So there was not much relationship 
between them?
    Mr. Watjen. They are two separate things, but oftentimes, 
an employer will consider, actually, adding long-term care 
coverage as part of their package of benefits for their 
employees. So that is where it connects.
    It connects not so much in the coverage, but it connects in 
terms of the employer oftentimes thinking of that as 
potentially a benefit they may want to provide their employee.
    Senator Alexander. My time has expired. Mr. Watjen, thank 
you for coming.
    Mr. Watjen. Thank you, Senator.
    Senator Alexander. And Senator Harkin, thank you very much 
for your courtesy.
    Mr. Watjen. Good to see you. Thank you, Senator.
    The Chairman. Thank you, Senator Alexander. I know you have 
to leave right now, but I just want to followup on Senator 
Alexander's question. And that is how we get more employers to 
cover with disability insurance $30 a month. I suppose if you 
have a lot of employees that adds up. Is this a deductible 
expense, I assume?
    Mr. Watjen. For the employer, yes. Yes.
    The Chairman. I am just wondering if we should have more of 
a carrot out there somehow especially for small employers. If 
it is deductible, I mean. If, in fact, that Charles River study 
that shows all the savings that we get from people returning to 
work, saves the taxpayers a lot of money.
    So I am just wondering, to balance, maybe it ought to be a 
credit against taxes rather than a deductible?
    Senator Alexander. Well, that is interesting. I did hear 
one witness encourage us to think of carrots instead of 
mandates. I heard that part.
    What do you think of that, Mr. Watjen?
    Mr. Watjen. I think anything we can possibly think about to 
create more of the awareness and more incentive, because I do.
    I think, as some of the others have already spoken, 
employers feel a sense of responsibility to their employees to 
be sure that they are properly cared for, and everything we can 
do to actually make that easier is certainly something we all 
should work toward.
    Education is a piece of it. I still think there is a lack 
of appreciation for this issue and how it affects many of their 
employees. I do not want to underestimate the importance of 
education. We constantly work at it. That is another place that 
I think we could seek some help in being sure we are getting 
the message out at the employer level, but at the individual 
consumer level.
    And you are right. The employer actually is the one that 
makes the decision, but if they are hearing from their 
employees that they actually are worried about this issue, that 
can also affect the employer's appetite to do something like 
this.
    I would also add, that we all know employers are facing 
significant strains these days. And I think what we often find 
in this environment, especially at the small and mid-size 
employer, is actually the employer is asking the employee to 
pay a portion of the cost. That is a very common way to begin 
to get the employer, even those that are feeling intense 
financial pressure, to take on this responsibility, finding a 
way to share that cost--either a part of it or all of it--with 
the employee as well.
    The Chairman. I guess the problem is human nature being 
what it is, I mentioned that in my opening statement, there is 
a broad variety of factors that affect a person's decision in 
that. But human nature being what it is, young people are never 
going to get sick and they are never going to get injured.
    Senator Alexander. They are invincible.
    The Chairman. They are invincible. So I am just wondering 
out loud. I do not know about anyone else here, just how we get 
more people to have disability insurance coverage.
    I want to couple that with another question and that is 
that people like Unum and others, they do a good job in working 
with people to get them back to work, but SSDI does not. Is 
that something we ought to look at? SSDI, you go on it and that 
is it. So it seems to me that we would be better off if we 
could encourage more people to be covered by disability 
insurance, not only from the financial aspect, but also from 
the aspect of the private insurers having an interest in 
getting people back to work. SSDI does not seem to have that 
interest.
    How do we get the Federal Government, I cannot control 
employers, but what should the Federal Government be doing to 
get that 30 percent rate up to, make it 70/30 or 90/10 rather 
than what it is right now? Any thoughts on that from anyone?
    Mr. Buehlmann. I think education is definitely an issue. 
Having been 24 years old when I had my stroke, I thought I was 
invincible.
    The Chairman. Oh, sure.
    Mr. Buehlmann. You did not think it was going to happen to 
you, and it does happen. But as people start to age and get 
older, we are going to see much more disability out there, and 
I think people need to understand that. A lot of people are 
sort of on the brink of paycheck to paycheck, and you need to 
understand that you need some help to be able to bridge the gap 
to get back to work.
    You need to educate people that these things are important, 
and they need to plan for these contingencies. People just do 
not think it is going to happen to them, but it is going to 
happen much more now because we are living a lot longer. We are 
experiencing a much longer life-span than we did in the past.
    And use my story. Use other stories of people that you 
know. You see the coworker that has a disability that has an 
injury. They need to understand that this could happen to them 
at any time.
    Ms. Amato. Senator Harkin, I would agree that education is 
really paramount. I think that helping maybe model samples of 
younger people might get the need for life insurance. And 
certainly people become disabled at a much higher percentage 
early in their working life than the income protection they 
need for their family from passing.
    Sometimes what employers will do is model for their 
employees the value to different benefits. Obviously, there are 
different situations for different employers, depending on 
their size and so forth in terms of trying to provide a 
comprehensive benefit packet of the cost of all the benefits 
they offer and comprehensively what makes the best benefit 
offering for their employees.
    But I think that you need to help educate and particularly 
in the SSDI world. I think that having a more comprehensive 
integrated disability management approach in the SSDI world 
would make a big difference to touching those people that are 
out on disability and helping engage them again.
    The Chairman. Let me followup on that with you because you 
talked about the integrated disability model.
    Why has it not been more widely implemented?
    Ms. Amato. It has been out there for years. I think that 
there might be a lot of employers that may not be aware of it. 
It also requires a change of thought in terms of the business. 
There might be employers or organizations that are not sure how 
to support employees with disabilities, and so that fear factor 
might hold them back from looking at how to present and offer 
programs that are going to be helpful.
    The Integrated Disability Management program, IDM, requires 
that you are looking at all of your different benefits, and 
disciplines, and departments in terms of how each of those 
touches the employee and their ability to stay at work. And I 
think that Dr. Mitchell had really articulated it well that it 
is touching each of these: a safety employer, a risk 
management, the health and benefits programs, and so forth.
    So I think it is an education factor. It has been out there 
a long time, but a lot of organizations may not be aware of it 
and then also helping to collaborate the different departments 
that need to offer that program.
    The Chairman. Before I turn to Senator Hagan, let me ask 
one followup on that, and that is, I mentioned in my opening 
statement, and I read it in some of your statements also, about 
the study that was done on the cost of accommodations. And that 
literally it was, I forget the percentage I mentioned, but a 
high percentage was nothing, and then $500 or so for 
accommodations for people with disabilities.
    I have a sense, and this is sort of anecdotal from my 
talking with employers in my own State, and that is that, ``Oh, 
my gosh. The cost would be prohibitive.'' So I am wondering if 
there is a misconception out there about how much the cost for 
accommodations would be and is that realistic.
    The first question is: Is that a realistic number or does 
it cost more than that for accommodations? And second, if those 
are kind of ballpark figures, how do we get that information 
out?
    Mr. Mitchell. Senator.
    The Chairman. Ken.
    Mr. Mitchell. I think you are absolutely correct. The data 
you cited is accurate that the cost of an accommodation is 
minimal, at best. What happens is that examples are used where 
there is a massive need to put something in like an elevator or 
to change this. So what happens is that is what gets promoted, 
that is what gets shared as opposed to the day-to-day, 99 
percent of accommodations that make no difference at all in 
terms of cost.
    What we found when we help an employer build a return-to-
work program, we ask them, ``During the course of the day, how 
do you make adjustments for someone not being there, or 
something happening, or a tool breaks?'' And you find out that 
they have these strategies already in play, they just have not 
connected them to managing someone who has an impairment, or 
has a visual impairment, or is going through chemotherapy, and 
they have a fatigue factor or something like that.
    A lot of it is making sure that you do not allow the hype 
in terms of special events to override that, but also coming up 
with a plan. We find that when you help an employer--they have 
safety programs, you have fire drills. Invite the employer to 
talk about what-if. ``If you have a person that gets injured or 
ill, how do you compensate for a shift, a week, 2 weeks?'' You 
can build and that is what we call return-to-work pathways. You 
have a plan to bring a person back to work, even though you do 
not know who is going to get hurt, or the type of injury it is 
going to get, but you have a process and a plan.
    When you get an employer thinking that way proactively and 
creating that planning culture, that return-to-work culture we 
talk about, now you have a chance where people can move very 
timely and very smoothly into applying a reasonable 
accommodation.
    The Chairman. But who does this, Work RX or does SHRM? Do 
you consult with employers on this at all?
    Mr. Mitchell. We have a series of education programs, 
certainly the insurance groups, everyone from Unum, from 
Prudential, AARP, any of those particular groups, they provide 
these programs. There is a myriad of resources that SHRM is a 
leader in putting out workshops and seminars in terms like 
this.
    I am doing a workshop with the American Association of 
Occupational Health Nurses on dealing with the older worker in 
the workplace, which is the essence of that is accommodation to 
maintain the productivity of the older worker. And so, from 
that standpoint, it is a matter of education, but it is also a 
matter of will and it is a matter of self-interest. If you can 
get the employer to focus on that, then you get them to comply 
with creating that culture, and that is what makes the 
difference.
    Mr. Watjen. Mr. Chairman, if I could add too. I think we 
would agree very much with Dr. Mitchell's comments.
    This is not a costly undertaking. What ends up happening is 
that the sensational sort of change actually gets most of the 
attention.
    The Chairman. Yes.
    Mr. Watjen. But if you look at the experience we have had, 
the most important thing we could do is try to develop a part-
time to full-time regimen with an individual. That is not a 
modification of a workplace; that is a simple sort of plan that 
you develop that is customized for that individual based on the 
issues that they are dealing with.
    Then if you get into work modifications, most of them are 
pretty minor. It is a stand-up/sit-down desk. It is a keyboard 
that is more adaptive for maybe an issue that you are dealing 
with--such as carpal tunnel syndrome. It is a hearing 
impairment sort of tool. These are technologies and tools that 
are very readily available at very inexpensive cost. Those are 
the kinds of things that we can help our customers very much 
sort through.
    But I do think as Dr. Mitchell said, what often gets the 
attention is some of the most dramatic things where, I think, 
people reach very quickly some conclusions that are 
inappropriate. What it really is, is those things that I 
mentioned are the more bread and butter than what happens with 
the vast majority of conditions that we find ourselves and our 
teams exposed to.
    The Chairman. Yes, I wanted to yield to Senator Hagan, but 
Miss Walters, go ahead.
    Ms. Walters. Thank you, Mr. Chairman.
    You mentioned SHRM. I think it is a very exciting time. I 
think the timing of this hearing. SHRM is involved in a lot of 
initiatives and I find businesses are learning. It is kind of 
the eggshell of, ``Oops, I do not know if I should even try to 
address this.''
    Quick example, SHRM has forged a very close alliance with 
ESGR, Employer Support of the Guard and Reserves, and knowing 
that we are going to have a lot of folks coming back to us, 
veterans, reservists coming back, and some of those will be 
persons with disabilities. So forming those partnerships 
through SHRM's State councils and local chapters has been a 
great opportunity to learn about the needs of that population.
    SHRM also has a new When Work Works program, and a key 
component of that program addresses workplace flexibility 
including the Sloan Awards. And employers across the country, 
2011, had hundreds of winners of the Sloan Awards, and that 
really focuses on showcasing employers proactive practices in 
workplace flexibility, including providing opportunities for 
persons with disabilities to stay at work and return to work.
    So it is a really dynamic, interactive opportunity for HR 
professionals and business owners. I have seen relationships 
forming with State and local chambers of commerce to partner a 
business with HR with a lot of these other entities to learn 
about, ``What can we do? What do you do? Let us not reinvent 
the wheel. What works well? What are some of the pitfalls to 
avoid?''
    So I will stop there.
    The Chairman. Senator Hagan.

                       Statement of Senator Hagan

    Senator Hagan. Thank you, Mr. Chairman, and thank you for 
holding this hearing.
    I wanted to followup on what you just mentioned about 
veterans. North Carolina is a strong military State. As a 
matter of fact, when you look at the population, we have 
probably a third, either active duty military or veterans in 
our State, and I am obviously very, very proud of that, and I 
come from a strong military family.
    But we also have a lot of disabled veterans, and in 2009, 
the Bureau of Labor Statistics found that 2.8 million or 13 
percent of veterans reported a service-related disability. And 
of the 2.8 million disabled veterans, almost 50 percent of them 
are in the workforce. We do have a high unemployment rate for 
our veterans right now, so that is something I am very 
concerned about.
    We passed a bill last year called the VOW to Hire Heroes 
Act, and it put some tax credits in for hiring veterans. And 
then if you have a service-related disability, then that tax 
credit is doubled. So right now, companies can get a tax credit 
of about $9,600 for a service-related disability to hire a 
veteran.
    So my question is directed to the full panel: do you know 
if employers are using this tax credit? And how can we make 
sure that employers looking to hire veterans, and the veterans 
themselves looking for work, know about this tax credit?
    Ms. Amato. Senator Hagan, thank you.
    Yes, there are many employers initiating Wounded Warrior 
programs that are very successful in integrating the veteran, 
the disabled vet back into the workplace, and collaborating 
with their veteran employee resource groups to give them a 
buddy, somebody that can help them transition from the military 
world to the civilian world, and how that is different in terms 
of rapport.
    So there is a lot of support for the Wounded Warrior 
program and employers are hiring veterans with really good 
success. And what comes from that also is the value to the 
other employees that really feel good about the place they 
work, and integrating the wounded warriors. It is a 
collaboration in this area with many of the large employers who 
are actually championing to increase the wounded warrior 
hiring.
    Senator Hagan. That would be great. Yes.
    Mr. Mitchell. One of the barriers that we have seen that 
seems to dilute the impact of tax credits is we find employers 
do not know how to integrate that injured worker or the 
disabled worker.

          ``It sounds good. We are all for it, but I am not 
        sure how to do that. I am not sure what really needs to 
        be done. Someone who might have traumatic brain injury, 
        or PTSD, or something else, we are not sure.''

    Along with tax credits or any legislation, and not just 
information and education programs, but one of the strategies 
we recommend is that organizations create mentoring programs. 
That is, mentor an employer on how to build, not a light duty 
program, but a transitional work program. Light duty programs 
get people in trouble because they put people on a light 
position and they can stay there for their whole career 
sometimes. Transitional programs bring back a person in a 
graded, incremental way back to full productivity.
    Helping a smaller employer, in particular, show how they 
can do that in their particular workplace becomes an effective 
way of giving them the skill to take advantage of the tax 
credit. So when the question is asked, why won't someone use 
the tax credit?, it is not because they do not want to. It may 
be because they do not know how to.
    We have to recognize that ``how'' part of building return-
to-work programs.
    Senator Hagan. Good point.
    Dr. Mitchell and Mr. Watjen, you both have talked about how 
disability insurance is a crucial part of the financial safety 
net providing about 60 percent of income replacement to 
individuals who are unable to work. Obviously this coverage is 
so important for employees, but also benefiting the employers 
for improving recruitment, and retention, and productivity.
    I know we have been talking about this study by the Charles 
River Associates that showed that employer-sponsored benefits 
such as disability insurance actually helped save the 
Government money up to $4.5 billion per year by reducing the 
pressure on the SSDI program. So I think the value of income 
protection benefits for employees, and employers, and the 
Government is certainly clear.
    What percent of employers offer disability insurance to 
their employees? Then if you could talk about what percentage 
of the employees then take advantage of the disability 
insurance if it is offered? And I guess, the final question is, 
how can we encourage more employers to offer the disability 
insurance to their employees? I know Senator Alexander was 
talking about carrots, what can we do to provide carrots for 
that?
    Mr. Watjen. I will start, Senator Hagan. Good morning.
    Senator Hagan. Morning.
    Mr. Watjen. Just on the employer side, actually, and it 
varies substantially between large employers and small 
employers. You would find large employers--probably 80 to 90 
percent of the employers will actually have some disability 
plan in place. That number will drop considerably, probably 
down to 25 to 35 percent for small employers. So, it really 
does differ quite dramatically depending on which type of an 
employer you are talking about, which obviously is where some 
of the challenges have been.
    We talked about some of the challenges the small employer 
faces in being sure the small employer can see the value of a 
program like this, but also, where they can share the costs 
with the employee. There is a lot of work to be done there to 
educate. At that level, we have some different customer 
dynamics between the large employer and the small employer.
    I mentioned the other statistic, which is, roughly 30 
percent of the employees in the workplace actually have 
disability insurance. It varies pretty dramatically by 
organization in terms of how many take it when they are offered 
the chance, especially if they have to use their own money. Can 
we actually share it with them? Can they appreciate the value 
of that disability insurance? That is a challenge for us. It 
has been a challenge for the industry for decades in terms of 
people, again, appreciating the fact that they are much more 
likely to have a disabling condition over their lifetime, 
working lifetime, than they are, for example to, unfortunately, 
pass. That is a very hard concept to get across and that is 
where financial education is so important in this process.
    We have challenges at the small employer level. And then 
throughout every organization, getting people to sign up for 
it, especially if they are having to use their own money, we 
have the challenge of people appreciating the probability of 
having a disabling condition is much higher than you think.
    Mr. Mitchell. Also to your question about how can we get 
companies to give more? Here is a suggestion or a tack I take 
is that all too often when someone is trying to buy an 
insurance policy, we focus on the cost. And it cost this, it 
cost that, so we have used that vocabulary here today.
    What I focus is on the investment. That is, you are going 
to get something for this. It is not just something you are 
buying and are never going to use. If you begin to focus on the 
investment, whether it is insurance itself or the return-to-
work program that they might be involved in, you can begin to 
quantify the value of that investment.
    What we see is that basically a return on investment 
return-to-work program is about 1 to 7, 1 to 8 in terms of 
that. We know we can measure that in terms of companies that 
have put in a return-to-work program, they realize that amount 
of return on that investment, or what we call the return-to-
work dividend.
    But an important part of that is putting it into the 
currency of a company. I had a bank that was kind of resisting 
getting people back to work, and so I asked them. I said, ``Do 
you understand what the impact is to you?'' He said, ``Well, 
yes. We know what the cost is.'' I said, ``No, the impact.''
    And what we did was we measured, we took the amount of time 
people were off of work, we brought that together, and we put 
it into full-time equivalencies in terms of the number of 
people that hours created in terms of lost time, and we find 
out for this bank, they had 10 branch banks open for business 
all year, and no one was there.
    Senator Hagan. That is interesting.
    Mr. Mitchell. We quantified the impact in productivity. Now 
building a return-to-work program was an investment, not a 
cost. After a year of the return-to-work program, we found out 
that from that, we have that in terms of instead of having 10 
banks open for the year and no one there, they only had 5. They 
can measure that and that is the investment. That is the key to 
getting more people, both employers and individuals, to invest 
in that.
    Senator Hagan. Thank you, Mr. Chairman.
    The Chairman. That was just fascinating that kind of a 
study.
    Let me turn to something else. I will stick with you here, 
Dr. Mitchell. You pointed out, let me get back to your 
testimony here.

          ``The SSDI program reports return-to-work rates of 
        less than 10 percent. Private disability insurers 
        report return-to-work rates of 60 to 80 percent for 
        short-term disability. For long-term disability, 
        payments greater than 6 months, private insurers report 
        an estimated 20 to 25 percent depending on the 
        impairment type.''

    So it is clear that private insurers are pretty darn good 
at getting people back to work. We know that from Unum. Is 
there something that we should learn from this for SSDI?
    Mr. Mitchell. Yes, I think it is. If you had someone that 
takes 6 months to 9 months to prove that they cannot work, you 
should not expect them to go back to work. If you take that 
long time to prove that you cannot work, that is to be 
eligible, and say you cannot work to get your benefit, it is 
very unlikely that a person is going to go back to work.
    So what happens is the SSDI decision, whether a person can 
work or not, is so far down from the time that they could not, 
they stopped working that the idea of going back to work is 
almost not a question just because they have been separated 
from the workplace for so long. They have had to show evidence 
that they cannot work. And whether they get the Social Security 
or not, now they are in a situation to undo what they have 
actually convinced themselves that they cannot do.
    Social Security is basically a system that is there as a 
long-term social financial network. It is not designed to bring 
people back to work, but they like to think that they can, and 
in the hopefulness you can, but there are a lot of things going 
on in this in a way that prevents that from happening. And the 
most important part is timing.
    As Tom mentioned, and this occurs in all the disability 
insurers in the private sector, they are talking with the 
person within days, within weeks of the event and they are 
fully engaged with them. The Social Security may have a person 
who has not even talked to their employer in 6 months, and most 
likely is not even connected to that employer any more. So they 
do not even have an employer to go back to.
    So that is an important part right there, the actual timing 
and the nature of the conditions that the Social Security 
Disability Administration is presented in terms of when they 
receive a claim for an individual that has been off work.
    The Chairman. Well, we have been trying for a long time to 
get that time limit. Now I think it is down to 500-and-some 
days or something like that. So you are right. They have been 
out of work for a year and a half, and we know from experience 
that once you are out over 6 months----
    Mr. Mitchell. Right.
    The Chairman [continuing]. The chances of you going back to 
work diminish rapidly.
    Mr. Mitchell. Right, it does. And in my testimony, I show 
the chart.
    The Chairman. Yes.
    Mr. Mitchell. That really represents that and it is pretty 
dramatic. Even with the Family Medical Leave at the 12-week 
commitment of covering that, even at 12 weeks, the percentage 
of going back to work is very low. I like to consider it the 
30- to 60- to 90-day rule. That is the window of opportunity 
you have to really begin to get the person engaged and return-
to-work planning.
    Now, they may not be ready to go back to work, but you are 
now in a position to at least start the planning process. And 
my colleague here talked about, he did not say when he was 
coming back to work. He said the right word: how.
    The Chairman. I thought it was ``when.'' How.
    Mr. Mitchell. That is the critical part and when a person 
has been off that long, they do not know how to get back to 
work.
    The Chairman. That is right.
    Or as I like to say sometimes they just get in a rut. They 
just get out, and they get in a rut, and then they----
    Mr. Mitchell. Well, here is the Ken Mitchell vernacular: 
they get stuck.
    The Chairman. Oh, they get--yes, rut, stuck. Right.
    Mr. Mitchell. They get stuck. They do not know where to go, 
and you know what it is like to be stuck.
    The Chairman. Right, exactly.
    Mr. Mitchell. You just cannot go anywhere.
    The Chairman. Exactly. Yes, Miss Amato.
    Ms. Amato. Just one other comment on the SSDI question. I 
think you know with SSDI, it is all or none, and what the 
employer has learned is that if you offer some carrot, which is 
the ability to do a little bit of something in employment.
    The Chairman. Yes.
    Ms. Amato. Be productive, work a little bit that you are 
incentivized. If you are continuing your benefit, whether that 
is your private insurance disability benefit if you have that, 
then you are not disincentivized from returning to some kind of 
employment, and with SSDI, it is all or none.
    So having a program that might allow, when they are out, 
because they have obviously been out of the workforce 6 months 
at least, but creating a program that allows them to transition 
to vary part-time with support, with vocational rehabilitation 
might be a carrot that would help them come off the rolls if 
they knew they were not losing their full SSDI benefit.
    Mr. Watjen. Mr. Chairman, I just want to make one 
additional comment too.
    The Chairman. Yes.
    Mr. Watjen. I think we often minimize the psychological 
effect of a disabling condition. The physical piece is very 
obvious, and we talk endlessly about that.
    But there is no doubt immediately when this happens, as we 
heard from Eric, there is a sense of, ``What do I do? How do I 
even think about the rest of my life?'' And the more we can 
transition the discussion from the disability to the ability 
side of what someone can do quickly, then you begin to have a 
spirit of finding a way to return to work to do the things 
necessary to make that happen.
    And that shift from disability to ability conversation 
needs to happen very early in the process, otherwise it sets 
in, to use Ken's term. You get a mindset and you do not begin 
to think that way, and you are not going to think about the 
ability side and that has to happen very, very early in the 
process.
    The Chairman. And you do that. Unum does that.
    Mr. Watjen. We do, we do.
    The Chairman. You do that.
    Mr. Watjen. We do because that is where, as Dr. Mitchell 
mentioned, those conversations happening days after a disabling 
event occurs is so important because as much as anything, you 
are beginning to establish that rapport, beginning to create 
that set of expectations, beginning to transition the 
conversation away from the disability itself to what we can do. 
And that is really, that is a huge psychological shift when 
that actually occurs, and that has to happen, again, very early 
in the process.
    That is why not just us, but all of our industry. That is 
all part of how we do business, which is get engaged with the 
individual very early in the process.
    Mr. Mitchell. Senator Harkin, I think there's been----
    The Chairman. Yes, go ahead. Sure.
    Dr. Mitchell [continuing]. I think there is going to be an 
interesting shift over the next years because we are going to 
find a different type of person that is working in the 
workplace. This has been shown very clearly with cancer where 
cancer used to be one of the most significant disabling 
conditions for individuals. We are not seeing that now. You are 
seeing more people working and going through cancer therapy.
    So there is going to be pressure on employers now to make 
accommodations, to create transitions, to accommodate that 
person who wants and needs to go through their chemotherapy and 
still work. That is what is going to be the issue with the 
older workforce because the older worker is more inclined, 
especially women in their forty-fives and fifties, to develop 
breast cancer, a man with prostate cancer, colon cancer. The 
treatments today are such that the survival rate is so high and 
the treatment may be longer.
    The Chairman. Right.
    Mr. Mitchell. People are not going to want to be on 
disability. They want to work. We are going to see a push on 
employers to make adjustments, and I think that will be an 
important part of that rethinking, or thinking differently 
about staying at work and returning to work in relationship to 
these types of issues.
    The Chairman. I think in your testimony, if I remember, in 
your written testimony you talked about surveys done of people, 
they expect to work later on in life. They expect to be 
working.
    Mr. Mitchell. Exactly, exactly. That is very clear. The 
surveys, the research being done on that worker, the Baby 
Boomer group is they are expecting not because they may want 
to, but they are going to need to extend that workplace, their 
work time into their sixty-fives, seventies, maybe into 
seventy-fives. And employers are going to want to keep them 
because they are a talented group of individuals and resources, 
and they are going to have to have benefit programs that comply 
with that.
    The Chairman. Yes, Miss Amato.
    Ms. Amato. Thank you, Senator Harkin.
    I am just thinking in terms of engaging with them very 
early on with the employees. One of the things employers can do 
is really be proactive. We obviously have preventative 
strategies, but in terms of offering proactive resources under 
the HR. We have a well-within program which includes nurses and 
nurse care managers, return-to-work coordinators, and wellness 
coordinators.
    Basically what that model allows you to do is be available 
to the employee, listen to them when they are starting to 
express concerns, health concerns. Engage right away. You are 
looking at ways that you can modify the workplace. You are 
offering solutions if somebody is going out, for instance, for 
radiation or chemotherapy. You are creating a flexible day, 
compressed workweek. You are doing what you have to do to allow 
the employee to stay at work and also you are supporting your 
business needs. So there is a model also for employers to 
benefit from engaging right away, and if they can create a 
structure of support, that helps.
    Mr. Buehlmann. From my own personal example, definitely 
time and getting it engaged right away is exceedingly 
important. It is in my written testimony, but I did not say it 
here.
    About the first week and a half after I started becoming 
aware at Georgetown, I was bored out of my mind. Hospital TV 
's, as wonderful as they are getting, daytime television gets a 
little boring after a while.
    The first day the therapist came in to start working with 
me was probably one of the happiest days that I had because it 
was an advancement. It was showing that there was movement and 
you were going to go forward. And being able to be sort of 
ingrained into the inpatient therapy that I had at NRH for such 
a long time was huge in my recovery, because you are basically 
doing it 24 hours, 7 days a week. Even when you are eating in 
your room, even when you are just doing very simple things that 
you think, it is part of your life at that point.
    The psychological is hugely important because you have to 
overcome, ``Why did this happen to me? What is the long-term 
effects? What are people going to think?'' those kinds of 
things. The therapy, but also the psychological at the same 
time is very important, and starting it quickly so that you do 
not get stuck in the rut. It is important to try to get the 
person out as soon as you can, and make them look like they are 
going forward, and there is progress that is going to be 
happening, even if it is small.
    People would come in and see me that had not seen me for a 
couple of weeks. I did not necessarily see the progress, but 
they would see the progress because they had not seen me for 3 
weeks. Every day there is always a little change that is 
occurring and it is important to keep moving forward on that.
    The Chairman. OK. We are coming to a close here, but a 
couple, three things. One, somehow we--and I do not know what 
the Federal Government's role is here, and I am looking for 
advice and consultation from all you experts on this--what 
should we do to encourage employers and employees to get 
disability insurance? Obviously we know it saves the Government 
money. The private insurers are more adept at getting people to 
return to work and consulting with them earlier. How do we get 
more people to carry disability insurance? I am looking for 
what we can do. I don't know.
    Second, what do we do about SSDI? I don't know. We could 
try to collapse the timeframe. There is not that kind of 
involvement with SSDI as there is with the private insurers in 
terms of getting people early on to motivate them to get back 
to work.
    You have one suggestion that was made here and we have 
wrestled with this a long time, and that is if you are on SSDI 
and you are able to go back to work that you don't lose 
everything, that you keep something where you don't just fall 
off a cliff right away. We have wrestled with that for a long 
time. I think there is something there that we can do.
    How we, again, get small businesses. Small businesses just 
don't have HR departments and things like that where they can 
work with employees, and most small businesses they just don't 
have that wherewithal. So how do we get them involved in this 
process?
    There is one thing I did want to say here. I asked my staff 
to get this for me. I am surprised how many small businesses 
don't know this, but Title 26, Section 44 of the Internal 
Revenue Code. We passed this after the ADA back in the 1990s.
    Right now, there is a tax credit available to small 
businesses. It is a 50 percent expenditure of up to,

          ``It exceeds $250, but not to exceed $10,250. A 
        business may take the credit each year. It is a small 
        business that has $1 million or less in gross receipts, 
        30 or fewer full-time employees,''

And it is a tax credit. It is an absolute tax credit.
    So they can get a tax credit, not a deduction for that, but 
a lot of them don't know that. And if it is $500. Well, let us 
see if I figure it right. If it costs them $500 to get a credit 
for anything over $250 and a half, it would cost them $125 is 
what it would cost the business to do that.
    That tax credit is there and many times I have talked to 
small businesses, come in my office, or I see them someplace, 
and they just were not aware of it. And, of course, again, they 
do not have HR departments, and they do not have tax 
consultants who tell them that. So we have to do a better job 
of getting that information out.
    We are just making sure when we deal with SSDI, how we have 
early intervention programs, as you said, to where we can get 
the people early on because we know if they are out for more 
than 6 months, they get stuck.
    These are all things that we are wrestling with and that is 
why this hearing is so vital to hear from you in the private 
sector about what you are doing. Now, if you have an answer to 
all those questions right now, I would be glad to entertain it.
    Mr. Watjen, did you have an answer?
    Mr. Watjen. Well, I do not have all the answers actually, 
but what I would say is I really do think we should put our 
heads together and think about how we all collectively move 
down the awareness path. How do we create the awareness? 
Because I think whether it is the tax provision you talked 
about, whether it is the failure to appreciate it as a business 
owner how what you are doing is not just good for your 
employees and your business, but actually has a positive impact 
on some of the discussions here in Washington more broadly 
about how to reduce deficits.
    I think it could just go on and on where there are a set of 
message points to be made that probably we could do them a 
little differently in a little more holistic way and do it a 
little bit together because, again, I think a lot of what we 
talked about is education. And unless people have that sort of 
appreciation either on the individual level for the possibility 
these things can happen in your life, or at the employer level, 
about how you can actually do these things in a relatively 
cost-effective way. And frankly in Washington in the 
environment here in terms of how it actually could be good 
potentially for the Social Security Administration plans or in 
trying to reduce those expenses.
    So that whole communication piece and awareness is 
probably--I would start with that as the biggest place to me. 
We just need to put our heads together following a hearing like 
this, and put some definition behind that.
    The Chairman. Should we make it a tax credit rather than a 
deduction for disability insurance for employers? I do not 
know. I thought about it.
    Mr. Watjen. Yes.
    The Chairman. Obviously, it is going to be a cost to the 
Government.
    Mr. Watjen. And that is why, at least from my personal 
view, I was not promoting anything that was going to cost too 
terribly much.
    The Chairman. We know the money that it saves.
    Mr. Watjen. Absolutely. No, very much so. I think it could 
easily be that that discussion is a little easier to have when 
there is a better appreciation for how all these pieces connect 
in a way that, frankly, is good for everybody: individuals, 
employers, those trying to continue to manage here in 
Washington, some of the public programs.
    Again, we have a little more work, I think, to do to 
connect all those dots for people, and then maybe create a 
little better atmosphere from which to begin to look for 
financial incentives to support that.
    The Chairman. I think that is probably true. Mr. Buehlmann, 
did you have something? Yes.
    Mr. Buehlmann. Using purely my work hat at this point, I 
would say there is a Federal set of programs that sort of 
mirror what Unum does in some respects in terms of the 
protection, and advocacy, and the client assistance programs in 
terms of providing advocacy for individuals with disabilities 
and helping them, and working with the employers in getting 
them back to work.
    One of our programs is the Protection and Advocacy for 
Beneficiaries of Social Security program, trying to move people 
off of SSDI and back to work. People with disabilities want to 
work. And so, you need to create sort of the atmosphere where 
the employer is talking with the person with the disability in 
creating the accommodations, and helping the person transition 
back to work.
    The Ticket to Work program is one of those things that is 
very helpful in terms of ensuring that there is still health 
insurance coverage because that is definitely a big concern for 
people with disabilities--that they are going to lose their 
health insurance coverage in shifting off of the Federal rolls 
back to employment and that they may not have the same level of 
health coverage.
    But I think there is sort of a counterpart. There is a 
Federal role in terms of the protection and advocacy and client 
assistance programs that sort of mirrors what my colleagues 
here are doing at the same time.
    The Chairman. Any last thing?
    Ms. Amato. Yes, Senator Harkin.
    I think what the Government might want to do is create some 
off-the-shelf programs that employers, particularly small 
employers, can use to kind of guide them in terms of what the 
incentives and the value-add to offering coverage or benefits, 
what the value-add is for them; so having those kinds of 
things.
    Also SHRM offers and making them clearly understand what 
benefits that SHRM has on their Web and so forth for resources. 
And last, perhaps incentives from even the insurance companies 
for employers that look to the small employers particularly 
that need some help might be beneficial.
    The Chairman. How would we get that? Explain that further 
because I really want to get to the small employers.
    Ms. Amato. Right.
    The Chairman. But what could we do to incentivize this, you 
say?
    Ms. Amato. I think your idea of taxes is certainly one, but 
maybe and I am looking to my friend over here in terms of the 
insurance companies giving a little incentive to the employers 
to consider purchasing insurance for their employees.
    If there is an incentivization regarding their tax cost 
structure or providing a value-add that once you--based on your 
benchmark, that you bring more people to work, showing them 
that, and sort of having a tiered approach to something like 
that. I do not know if that is possible, but just throwing some 
ideas out.
    Mr. Watjen. No, it is not. As I mentioned, the engagement 
of the small employer in this is much lower than it is for the 
large employer, significantly lower.
    The Chairman. Right.
    Mr. Watjen. And yet on the other hand, when you do have a 
chance to sit down with a small employer and talk about how 
these can actually be not just good for you and your employees, 
actually more important to you and your employees because you 
do not have a full HR department.
    You do not have resources that actually are aware of how to 
help people get back to work at the corporate level. You are 
simply on your own because you are maybe the business owner, 
you are also wearing the HR hat, and oh, by way, you are doing 
something else in the front of the store at different points in 
time. So the value-add is actually even greater for the small 
employer because they do not have those resources.
    This gets back to the awareness. It is difficult to get out 
that audience, but we have to think differently about how to do 
that because there are very simple products and offerings that 
are out there that make it very easy for the small employer. It 
is just getting them to act and making them more aware because 
they are running a business. So how do you get some time with 
them, and grab their attention, and get them engaged in this 
discussion? Which is why I always come back to this.
    We have a substantial awareness issue out there and maybe 
more collectively working together as private and public 
sector, and those engaged in all of this. There are ways we can 
maybe be a little more aggressive because the time absolutely 
is right.
    As every speaker has spoken about, these issues are not 
going to get any easier for us. They are going to get more 
challenging as the population ages, and some of the 
demographics that we know that are unfolding are going to 
continue to unfold.
    The Chairman. Exactly. Yes, Miss Walters.
    Ms. Walters. Mr. Chairman, ditto on tax incentives, tax 
credits, and safe harbors. To answer your question, how do we 
entice small employers to offer short-term disability 
coverage?, I go back to the eggshell issue. What I hear a lot 
is small business knows enough to know what they do not know, 
and it is that concern of, ``I do not know what I can ask about 
what you might need. I do not want to violate the ADA, the 
FMLA.''
    The Chairman. Oh, yes.
    Ms. Walters. ``GINA, HIPAA. So I am going to do nothing.'' 
I think if there was an opportunity to say to small business, 
``If you develop an RTW strategy or a stay-at-work strategy,'' 
and maybe it is through a partnership with Jan, or workforce 
investment boards, or SHRM, so that there is some--I do not 
want to use ``oversight'' or ``regulation,''--but there is a 
partnership in how that program is developed.
    And then that small business was told,

          ``Since you have taken the time to implement this 
        strategy, if there is a charge or a claim filed against 
        your company alleging a violation of ADA, FLMA, GINA, 
        HIPAA, ET cetera, etc., you would be given a safe 
        harbor. That is, there would be a presumption that you 
        did not have the intent to discriminate or fail to 
        accommodate or violate any of these.''

I think that would be a fabulous carrot.
    The Chairman. I am going to explore that. That is a good 
suggestion.
    Ms. Walters. Why, thank you very much.
    The Chairman. I am going to look at that.
    Ms. Walters. Well then, I am stopping right there.
    The Chairman. I am looking at WIA too. I am going to 
discuss that because we are trying to reauthorize the Workforce 
Investment Act, and this might be something we get to take a 
look at there. I like that. Anything else that I should do?
    Mr. Buehlmann, first of all, I just have two things. I do 
not know you personally. I certainly know your mother very 
well, who is a very valuable member of this staff and I am 
supposed to note for the record that your mother has recused 
herself from working on this hearing because of her 
relationship with the witness. OK. I do not know why that is 
necessary.
    Mr. Buehlmann. She has had a long relationship with the 
witness.
    The Chairman. Your mother is a very valuable member of this 
committee. I also just wanted to let you know of my great 
respect for your former employer, Jim Jeffords. Jim and I came 
to Congress together, the same year, 1975. He was on the 
Education Committee, I wasn't, in the House; this is in the 
House of Representatives. But I had been interested, of course, 
in disability issues and Jim was interested in early education.
    So there evolved out of his committee, I was not on that 
committee, the Education of All Handicapped Children's Act, 
1975. And so then Congressman Jeffords was very much involved 
in that. I played a peripheral role. I was not on the 
committee, he was, but he was very central to the passage of 
that legislation at that time.
    Then we worked together over the years and then found 
ourselves both in the Senate, although I got here before he 
did, so I was senior. But then working together on the ADA and 
all of the issues, and then we worked together in the Senate 
when we changed the name of it. We changed it from Education of 
All Handicapped Children's Act to IDEA. That is what everyone 
knows it now as the Individuals with Disabilities Education 
Act, which I think was in 1990, if I am not mistaken. And your 
former boss played a very integral role in that, in all the 
education bills that we worked on, and helping, and making sure 
that people with disabilities were, especially children with 
disabilities, were fully integrated into the classrooms of 
America.
    I have a great deal of fondness for Jim Jeffords and just 
sorry about his present condition.
    Mr. Buehlmann. It was definitely--I brought a personal 
perspective to disability afterwards, but it was a perspective 
that I had while working with Senator Jeffords because people 
with disabilities and making sure that they were included in 
the workforce, and making sure they were included in education 
was always a very integral part of our office.
    It was something I knew lots about before my personal 
experience and sort of my work afterwards, but it was 
definitely something that he carried throughout his career here 
in the House and the Senate.
    The Chairman. Well, I have often said the Congress was a 
much better place because of Jim Jeffords. He was a great 
gentleman and just an outstanding Senator. Just sorry about his 
illness and what has happened to him.
    Anyway, I will not dwell on that, but I just wanted you to 
know my great respect for your former boss.
    Mr. Buehlmann. Thank you.
    The Chairman. If there is nothing else to come before the 
committee, again, I thank you all very much as I said in the 
beginning, for your work in this area, for your continuing 
involvement here. And as we move ahead, I hope that my staff 
can continue to reach out to you for advice and consultation as 
we move ahead in this area.
    We will leave the record open for 10 days to allow 
additional statements or supplements to be submitted for the 
record.
    Again, thank you all very much. The committee will stand 
adjourned.

    [Whereupon, at 11:48 a.m., the hearing was adjourned.]

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