Preventing Unnecessary Compensable Stress Claims

A lot is said about helping to prevent compensable stress claims with employees -- a medical problem that has severely impacted workers' compensation premiums in recent years.

Well, according to National Underwriter, the largest circulating property casualty news magazine, the most important factor in compensable stress claims is the involvement of an attorney who works on the behalf of a client (your employee) who may have been injured, experienced a traumatic event, or had another experience that could later manifest itself as a "stress reaction." Dealing with crazy supervisors and stopping inappropriate behavior is a large piece of this risk reduction puzzle.

Once an attorney is involved, separating those employees who may be malingering from real stress reactions may be extremely difficult.

Events that follow attorney involvement may include sexual harassment, being forced to participate in illegal activity, or negative effects of a dysfunctional supervisor.

This is still a very controversial area of workers' compensation. Many states disallow reimbursement for stress claims because of the potential for and history of abuse by employees. (California not one of them. Very progessive thinkers--those California folks. Not sure if their financial reforms include reducing the allowance of compensable stress claims.) By the way, I do support compensable stress claims for PTSD, or even acute stress reactions to a point.

According to research, responding quickly to real employee complaints, offering true empathy, and speeding assistance to injured employees may be the best way to prevent the involvement of an attorney and then a compensable stress claim. Please -- begging you to hear this -- the best way to do this is to employ the services of an employee assistance professional who gets to know your employees very, very well, and who by way of promotion gets to be regarded as the "go-to" person to address personal problems.

Give this individual strong confidentiality protection of his or her employee records and make that match the CFR 42 Part II. What that!? These are the federal confidentiality guidelines that are considered the strictest in existence. They are more strict than the medical confidentiality laws that govern primary care physicians and your personal medical records -- even the deepest, darkest, medical issues at your doctor's office. You didn't know about these laws?

CFR 42 Part II was passed into law in 1970 by the Hughe Act that started the National Institute on Alcohol Abuse and Alcoholism. They protect alcohol and drug addiction treatment records but any counseling issue will fall into their provision when a counseling program address substance abuse and receives federal funding. In fact, it's mandatory. But your program or counseling services can adopt these counseling guidelines voluntarily, and I would suggest strongly that you do. Make it corporate policy.

Simply state officially that your employee assistance professional confidentiality and records conform to these laws and you will have a solid promotional tool to get employees calling for help. Promote it continuously.

Now you will a professional counselor working on your behalf to help employees and spinning down concerns, anger, crises, and complaints where appropriate. Recommend any injured employee get help from the EAP. Allow the EAP to do presentation on recovery from injury and stress.

The EAP will encourage employees in sessions to sign a release so it can help resolve issues that can lead to lawsuits and better get the employee's needs met.

EAPs are the underplayed, underutilized, and have been screwed up by managed care companies, most of which have exploited them for their own purposes of limiting access to mental health benefits in exchange for financial performance bonuses paid to top management for their success in doing so.

If the above was not the case, you would already know what I just described above and it would be "household knowledge" because EAPs are so powerful and effective in resolving enormous personal problems that cause companies huge financial losses each year.

Frankly, if you are paying high premiums for Employment Practices Liability Insurance (EPL) or Director and Officer's Liability Coverage, argue for a discount if you use an EAP that is onsite, integrated, tenured, and that has low staff turnover. You're at less risk. They insurance company only needs to do a survey of existing customers to discover this reality.

The mechanism I just described reduces lawsuits related to employment claims, plain and simple.

Using Your Company's EAP as a Management Tool

The best kept secret in the world is the art and science of managers making use of the company Employee Assistance Program to help employees improve performance, reduce absenteeism, and resolve personal problems that may lead to extraordinary behavioral risk, including risk of violence.

In 1969 a revolution took place in the America with the advent of "Employee Assistance Programs" (EAPs) and the establishment of a new profession entitled the "Employee Assistance Professional".

EAPs flurished and solved an age only problem for managers wresting with problem employees. EAPs gave them a third alternative or avenue of management that was completely new. Beyond the role of tolerating an employee problems until they were eventually fired or badgering employees until they had some crisis, there were not alternatives to fire or ignore. Along came employee assistance programming.

EAPs are all about salvaging employees and getting them back to work healthier, more happy, and more productive than they were before.

I will offer effective tips to help supervisors manage people better. And we will be spending a lot of time together helping you acquire skills to reduce stress and help managers be all they can be.

Magic in Non-Disciplinary Letters

I have always been amazed at how supervisors chase employees to improve performance, stomp their feet to get them to work on time, or scold workers to curtail their inappropriate behavior. When none of the usual, emotional wrangling to to correct employee performance works, and a major incident occurs, out come the big guns - disciplinary action. What happened to the art and science of managing employees with an effective non-disciplinary corrective letter?

The missing piece of armament that very few supervisors seem to ever master well is the non-disciplinary corrective letter. A non-disciplinary corrective letter is a management tool and supportive measure to call an employee's attention unsatisfactory job performance and motivate him or her to make corrections to satisfy standards.

Effective corrective letters utilize potential reward and fear of loss to match the motivational psyche of the employee. (Some employees become motivated by reward. Other by fear of loss. It is the equivalent of being either left handed or right handed. And, of course some employees are both -- call it "motivation-ally ambidextrous."

Here is a "classic" non-disciplinary corrective letter. Print this model, because it can be a good one for you to consider.

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

To: Sally Smith, Machinist
From: John Doe, Supervisor
Subj: Attendance and Performance Problems
Date: 1-1-2006

Last week I reviewed the sick leave records and discovered that you have taken nine days of sick leave in the past year. Each of these days occurred on a Tuesday following a holiday weekend, or on a Friday preceding a three-day holiday weekend. I discussed my concern about this pattern with you last August 12, 2005. Since then, I have grown increasingly concerned. Your last such absence was on Dec. 27, 2005.

As you know, sick leave is a benefit to be used when necessary. The frequency of your sick leave is too high and affects your ability to perform essential functions. On February 15, several overdue widget projects caused a loss of their sale the day you were out. This cost the company $50,000. Your absences also negatively affect clerical staff. I would like to see your performance improve and your absences reduce.

You have excellent skills, and are a valued worker on the assembly line. But, if your use of sick leave remains high I will take additional steps to intervene, which could include administrative or disciplinary action.

Please provide verification of any future illness in which you lose work time. Please see me if you have any questions with regard to this request or the contents in this memo.

Thank you for your attention to this matter. As you know, the EAP is always available to assist you in the event a personal problem is contributing to your attendance problem. You can reach the EAP confidentially at 555-1234. I will review your use of sick leave in one month on Tuesday, February 1, 2006. Please plan to meet with me at 3:00 PM on that day.

cc: next level supervisor

Employee Violence and Problematic Relationships with Supervisors

I wanted to talk with you about workplace violence and supervisor relationships.

EAPs routinely help resolve problematic relationships that employees have with their supervisors. If you haven't worked with this type of issue yet, you will.

I believe this intervention activity that HR managers, EAPs, and even OD people sometimes tackle has the most potential to improve productivity, reduce risk of violence, and help insulate the company from lawsuits -- big ones. The role EAPs play in helping resolve employee-supervisor conflict should get more attention in the literature.

I have always believed that effective EAP models reduce the number of potentially violent acts that, as a result, never happen. The question is, do companies appreciate this enormous benefit that can't be easily proven?

Many of these cases begin with employees who have problems with supervisors. These problems don't just create conflict and distraction. They can lead to death by a violent act. The subject of violence and improving relationships with supervisors is so critical to safety that I always include articles about it during the year when writing WorkExcel.com\'s newsletters. I so badly want to produce 7-9 minute Flash movie on "Best Tips for Reducing Supervisory Conflict with Subordinates" I think this would prevent violent acts more than the usual "know the nearest exit to your office if your employee explodes."

Employees love tips for improving their relationships with supervisors. There are huge payoffs for providing them, and top management will love you for doing so. That's because management can't rally employees to improve their relationships with their supervisors. The dynamics of paycheck-driven relationships simply makes it impossible. Your newsletter is a perfect medium for doing it.

Here are a few topics to consider for your next newsletter and those down the road. Chase after your newsletter company to write about these topics. If you are in a pinch, have them send me an e-mail and I will reply with my thoughts. They shouldn't have any problem if the writers possess an EAP background, of course.

Topic ideas

* Improving channels of communication and increasing frequency of
communicationSpeaking with your boss freely about concerns early on, before
problems arise
* Asking for advice about problems that you are experiencing on the job
* Writing down your concerns and sharing them; helping plan your evaluation goals
* Asking for feedback -- going to the boss and not waiting for it
* Considering your boss's perspective -- not just your own; how to do it and why
* Using tact when discussing differences
* Figuring out what your boss really wants from you, without asking
* Understanding that your supervisor is probably not "out to get you"

Don't just make a newsletter entertaining for employees. Make it a loss-prevention tool for the company. These tips will reduce conflict, improve program utilization, and increase top management's awareness for your true value.

Employee Newsletters for EAPs and Workforce Productivity

Supervisor Training Tips in Reasonable Suspicion

Supervisor training tips in reasonable suspicion practice can be invaluable if you must deal with an employee whose job performance has become affected by drug or alcohol use.

There are few processes that you will undertake as a manager or supervisor that are as fraught with difficulty as confronting an employee for reasonable suspicion. There are many training courses available to help you learn how to deal with these situations but it may typically be months or longer after the training before you have to deal with a reasonable suspicion case at your workplace.

Training tips that summarize the course and remind you of specific information points are invaluable in helping you recall the training and put techniques to use.

Many of the best supervisor training tips in reasonable suspicion practice can come in the form of a list of Don’ts. Don’t discuss your suspicions of drug or alcohol use with others (except the appropriate line manager). Don’t play Doctor – you do not need to diagnose the problem. Don’t cover up for the employee.

Don’t moralize –at the workplace you are only concerned about conduct and job performance. Don’t be ‘suckered in’ by the play for sympathy. Don’t make statements (threats) that you have no intention of carrying out. Don't use you own recovery from alcoholism as a blow-away attempt to have the employee "fess" up. Don't take your employee to you Wednesday, AA meeting.

Dealing well with a reasonable suspicion case also involves on-going work with the employee if they maintain the job. In this case, supervisor training tips in reasonable suspicion practice can give you reminders of how to move forward. Do keep an open door policy to encourage good communication and do have respect for the employee’s privacy. Do allow time for the employee to adjust to the new situation. Do hold regular performance appraisal meetings. Do encourage the employees personal efforts (support groups, counselling etc). Do give regular and supportive feedback for both performance and behaviour. Do give immediate feedback and correction if you notice the old pattern re-emerging.

Supervisor training tips in reasonable suspicion can serve as bullet point reminders of the deeper lessons you received in reasonable suspicion training. They will help you recall the steps to take, and the things to expect. Most good quality training courses will provide you with a great list of hints and tips. If however, the course you are taking does not provide you with a readymade list, make your own as you go through the training. This ‘short list’ of the salient points can help you remember the critical details of the training when the pressure is on.

If you are in search of excellent supervisor training tips, try firstgov.gov and do a key word search under reasonable suspicion. You will discover thousands of ideas and choices.

Yep, that is Sexual Harassment!

Q. We have a supervisor who frequently makes "crude" and embarrassing sexual remarks to both men and women in our work group, but no one specifically. We're a pretty "rowdy" group and some of us even respond with approval at times. It can't be sexual harassment if no one person is the "target" of this behavior, right?

A. Wrong. The U.S. 9th Circuit Court of Appeals recently ruled that harassing, abusive, and crude remarks can constitute sexual harassment, even though a supervisor directed the comments to all employees. The important question to ask in all sexual harassment cases is this: Is the supervisor's conduct sufficiently severe or pervasive to alter the conditions of employment and create a hostile or abusive working environment. If so, the issue turns to whether the employer, when informed of the abusive behavior, took prompt action to remedy the situation. If supervisors remember this description, much of the gray area of questionable behavior will become clear. Also, even if a supervisor's conduct is equally degrading to both men and women, it does not make the conduct immune from liability for sexual harassment.

Supervisor Confusion about Substance Abuse

I understand that alcohol and drug problems are costly problems for business and industry, but why is it so difficult for managers to identify poor job performance and refer such employees?

A. Employees with chemical dependency problems are unable to consistently control the time, place, and amount of alcohol or drug use. Behavior will eventually interfere with job performance, attendance, or quality of work. It can occur quickly in the case of some drug problems, but could take 15 to 20 years to become apparent for some alcoholic employees. This is frustrating for employers and also for the chemically dependent worker, who may do whatever is necessary to make up for job performance shortcomings. This explains the up-and-down performance pattern, improved performance that follows a corrective interview, or extra assignments that might be gladly accepted or requested. In response supervisors tend to grade on a performance curve, real or imagined, that is higher than actually deserved. In effect, the troubled employee's coping strategy to avoid confrontation works. Combine this pattern with well-practiced defenses used to explain other performance discrepancies, and you can easily see how difficult it can be to manage this type of employee.


Due to inaccurate in formation and mistaken beliefs about alcoholism or addictive disease, people who are close to the addict (alcoholic) "enable." This behavior pattern occurs in personal relationships with addicts, both at home and at work. There are usually persons in relationships with addicts who are considered primary enablers.


Enabling at work is behavior exhibited by coworkers or supervisors that helps the addict not realize or face the consequences of his/or her problem behavior resulting directly or indirectly from the alcohol or drug use. Enabling typically appears as the "right" thing to do in response to the problem behavior but helps the alcoholic or addict escape responsibility for actions or problematic events. The ability of the addict to deny, rationalize, externalize, and minimize problems while having others accept excuses and explanations


Enabling may be so well accomplished that the alcoholic or addict may appear as a person with no problems. In the earliest stages of addictive disease, this person could be perceived as the most competent, well-liked, and socially accepted worker in the organization. As addictive disease grows worse, problems follow --- and enabling increases. The alcoholic's past history of job success without problems may span decades. This keeps managers unsuspecting of an alcohol or drug problem. They easily believe some other problem explains job performance issues. These problems are often symptoms of the primary addiction. Supervisors or coworkers are easily led or manipulated to excuse, help, make up for shortcomings, or in other ways support and protect the addicted worker. These enabling patterns can continue in the face of late-stage addiction, such as alcohol on the breath, erratic and disturbing mood swings, and obvious withdrawal symptoms.


Eventually the enabling behavior becomes so automatic and institutionalized in the company, that only a crisis will break the pattern. Often this crisis is one that causes extreme embarrassment, financial loss, or other cost to the organization. Unfortunately, the response to such crises is often termination or transfer at great expense to the organization. The loss of a potentially valuable employee is the real tragedy. Sometimes medical retirements are arranged for workers who have become too ill to function. When this happens, the life span of such employees is often shortened, due to uncontrolled drinking supported by a fixed income. An ensuing decrease in the alcoholic’s interest in treatment and an increase in medical and social dysfunction accompany this financial independence.