Section 2.1 Required Staffing, Temporary Disability and Modified Duty

  • The SFPD defines modified duty as assignments in which a temporarily disabled employee performs work outside his or her normal duties that accommodates his or her medical restrictions. The decision to place an officer on modified duty status is made upon certification by the treating physician and is subject to the availability of a suitable modified duty position that is consistent with the physician"s recommendations. 
  • The current policies and practices of the SFPD do not establish a specific number of modified duty positions but do set, at 365 days, the maximum length of time an officer can be assigned to modified duty. This maximum time of 365 days on modified duty was established in November, 1997 by the approval of General Order 11.12.
  • To address the deficiencies in the current Return to Work/Reasonable Accommodation policies, the SFPD should: a) maintain the time limit of 365 days, set by General Order 11.12, for temporary disabled officers who are serving in modified duty positions; b) eliminate 66 of the 121 positions which were added to the SFPD budget, over and above the charter mandated staffing level of 1,971 sworn positions, to accommodate officers on modified duty or temporary disability leave and clearly define the conditions for placing permanently disabled officers in modified duty assignments; c) clearly define the steps that will be taken in the event that an officer completes the 365 days of modified duty but is still disabled and is unable or unwilling to obtain disability retirement; d) define "reasonable accommodation" and provide details on how the SFPD"s definition diverges from the Federal ADA standard and its method of making such accommodations; e) inform the Retirement Board of the maximum modified duty positions available and the time limit that sworn officers may serve in modified duty positions and work with the Retirement Board to develop a policy for retiring officers who are permanently disabled rather than keeping them in modified duty positions or accommodating them above and beyond current ADA standards; and f) continue to use the comprehensive tracking system that is part of the new Workers Compensation Claims Management System in order to monitor officers on modified duty.
  • Eliminating 66 of the 121 positions currently used for modified duty and temporary disability leave would represent an annual savings of over $4 million without reducing the current level of police services.
Introduction

Workers Compensation, Modified Duty (also referred to as Light Duty) and Disability Retirement are interrelated issues for the San Francisco Police Department. These three issues are regulated by: (1) the California State Labor Code; (2) General Orders and Information Bulletins, issued by the Police Department; and (3) the Administrative Code and the Charter of the City and County of San Francisco. In this section of the audit report, we will discuss these interrelationships and the manner in which the Police Department, the State, the San Francisco Workers Compensation Division, and the San Francisco Retirement Board administer their respective duties with regard to workers compensation claims, modified duty assignments and requests for Industrial Disability Retirement.

Modified Duty assignments are the result of work and non-work related injuries that require Police officers to restrict their activities because they are unable to fully perform the required duties of a Police officer. However, those officers who are injured in non-work accidents must request modified duty. To accommodate the need for such assignments, the Police Department maintains Modified Duty positions that can be held by sworn personnel. Such positions are generally administrative in nature. Details regarding the use of Modified Duty are discussed later in this section.

Prior to obtaining a modified assignment, an officer has: (1) filed an injury report and worker"s compensation claim; (2) been examined by a physician and received a determination that some type of temporary disability exists, and that the disability prevents the officer from fully performing the duties of a Police officer; but (3) been released by a physician to return to the workplace, as long as there are activities the officer can engage in which meet the restrictions set forth in the physician"s release orders.

Other issues such as determinations of permanent disability, reasonable accommodations and Industrial Disability Retirement add to the complexity of the SFPD"s policies regarding modified duty as well as the status of workers compensation claims filed by Police officers. As appropriate, these issues are discussed in the following section.

Methodology

As part of the fieldwork for Phase 2 of the performance audit of the Police Department, the Budget Analyst reviewed and analyzed the SFPD"s policies and practices with regard to the filing of workers" compensation claims and the use of modified duty assignments for sworn personnel who have temporary disabilities. In order to assess the use of modified duty by the SFPD, and the status of workers compensation claims, audit staff obtained and reviewed documents from the Police Department and the Department of Human Resources for the City and County of San Francisco. These documents included:

• OSHA Form 200, which reports the number of days individuals have been out on disability and the number of days individuals have been assigned to modified duty as the result of disability injuries and illnesses;

• SFPD records of positions within each Division which are staffed by individuals who are on modified duty;

• California State Labor Code Sections outlining the responsibilities of employers with regard to the payment of medical and temporary disability claims;

• SFPD Information Bulletin 97-65 which describes the system for tracking workers" compensation claims and General Order 11.12 on the Department"s official policy for sworn members who are temporarily or permanently disabled (supersedes Information Bulletin 86-133); and

• Interviews with key staff from the Police Department"s Medical Liaison Office, the Workers Compensation Division of the San Francisco Department of Human Resources, and the Retirement Board.

Assignment of Officers to Modified Duty

To place an injured employee in a modified work assignment, the SFPD follows four steps:

1. The department receives notification from the Workers" Compensation Division that a member with an industrial injury may return to work in a modified capacity, or a memorandum from an officer with a non-industrial injury requesting to return to work in a modified capacity. As discussed in the Introduction to this section, there are five forms to be completed whenever professional medical care is necessary for an initial occupational injury or illness.

2. The member"s medical work restrictions are then received by the Staff Services Division, which then compares the limitations placed on the member with available modified work assignments.

3. As to industrial injury, questions regarding a member"s ability to perform (1) the full duties of a member"s regular assignment or (2) modified duties, must be clarified by the member"s treating physician. If there is a dispute over this issue, a final determination will be made in accordance with Worker"s Compensation Rules.

4. The Deputy Chief of Administration may make a recommendation for a modified work assignment to the Chief of Police. The Chief of Police makes the final decision regarding the availability of a modified work assignment, based on the member"s medical restrictions and on the personnel needs of the Department. The Chief"s decision must also take into consideration the member"s job skills, job qualifications, training, experience, and seniority.

While the SFPD provides steps to place an injured employee in a modified duty position, we found that there are an increasing number of officers who are in modified duty beyond 365 days. Based on interviews with representatives in the Medical Liaison"s Office, we also found that attending physicians, who are designated by the injured officer, are inconsistent in their recommendations for returning injured employees to work. Additionally, there is no designation of the person responsible for questioning a member"s ability to perform which might result in differences in evaluations. Finally, there is no written analysis that the Chief of Police can use as a basis to make a decision on assigning modified duty positions. This is problematic as the Chief could continue to assign officers in modified duty positions regardless of the cost to the Department.

Since completing our fieldwork, the SFPD has installed and implemented a new Workers Compensation Claims Management System. This system is designed to track workers compensations claims and provides management with reports on the number of active claims, length of claims and status of each officer on modified duty.

Reasonable Accommodation

According to the SFPD"s revised modified duty policy, if a member has sustained a physical or mental impairment that substantially limits one or more major activities on the job, and has been performing in a modified duty assignment, his or her situation must be evaluated after 365 days. As a result of this evaluation, the member should either: (1) return to his/her regular assignment; (2) request a reasonable accommodation; or (3) request a recommendation for Industrial Disability Retirement.

If the injured employee requests a reasonable accommodation, he or she must complete a request form and submit a medical release from the physician to the commanding officer of the Staff Services Division. Within 30 days following receipt of a request for reasonable accommodation, the SFPD"s Duty Evaluation Committee must convene and determine whether the member could perform the essential functions of his/her classification with accommodation. The Duty Evaluation Committee includes the following members: the Deputy Chief of Administration Bureau (Chair), the commanding officer of the Staff Services Division, the Personnel Sergeant, the Police Physician, the Department"s ADA Coordinator, and a representative of the Police Officers Association (non-voting).

If the member cannot be accommodated to perform the essential job functions of his or her classification, the Committee will review vacant modified duty positions. As prescribed in General Order 11.12, the Department must identify a specified number of positions for members who are being accommodated but "no sworn member shall be granted an accommodation in a budgeted non-sworn position, except on a temporary basis when vacancies cannot be immediately filled." General Order 11.12 also states that the availability of the positions is subject to review for business necessity. However, it does not establish the number of positions.

If the Committee determines that an employee cannot be accommodated, the Committee shall offer to refer the member for an Industrial Disability Retirement. The employee may request a review of the Committee"s findings and recommendations by the Chief of Police and a review of the Chief"s decision by the Police Commission. If the Committee determines that an employee should be referred for disability retirement, he or she may be placed in a temporary assignment pending separation and is referred to the Retirement Board. As there is no cap on the number of modified duty assignments, the Department is likely to create additional modified duty assignments thereby influencing the Administrative Law Judge"s decision to grant an Industrial Disability Retirement to the injured officer.

Results of the Policy - Officers who have been in Modified Duty

Although the Return to Work policy states that employees who are unable to return to their full duty after 365 days must request reasonable accommodation or apply for an Industrial Disability Retirement, in many cases, permanently disabled officers have held modified duty positions well beyond the 365 day limit. As a result of the Department"s emphasis on reasonably accommodating injured members, many of the Department"s clerical and administrative functions are performed by sworn officers rather than by civilian employees. Currently there are 121 sworn positions, over and above the charter mandated 1,971 sworn positions, to provide for modified duty positions and temporary disability positions.

To understand the nature and duration of the administrative positions filled as modified duty by sworn officers, the Budget Analyst surveyed the SFPD"s Records of Administration Assignments within each division. The data shows several officers who have held modified duty positions for time periods longer than the recently approved 365 days as described in the SFPD"s policy (the new General Order 11.12, approved November 15, 1997). For example, a Sergeant has held a modified duty position in the Records for over 17 years; a Police Officer held a position in the Warrants Division for over 11 years; and another Police Officer held a position in the Fencing Unit for 13 years. With the new General Order in place and the implementation of the new Workers Compensation Claims Management System, long-term modified duty assignments, such as those described in this paragraph, will no longer be possible.

The analysis indicated that many of these assignments are temporary in nature and are not typically performed by a sworn officer on modified duty but rather by a civilian. Only 12 of the 77 administrative assignments identified by the Department are typically performed by a modified duty officer. However, at the time of the survey, 29 of the 77 assignments were being used for modified duty. The survey also noted that only one officer who had been in a modified duty position for more than one year had filed for an Industrial Disability Retirement.

Based on this data, the SFPD has provided injured officers with accommodations greater than those set forth in the ADA"s reasonable accommodation policies. The ADA establishes several definitions of reasonable accommodations that include the following:

• "Reasonable accommodation is a modification or adjustment to a job, the work environment, or the way things usually are done that enables a qualified individual with a disability to enjoy an equal employment opportunity."

• "Reasonable accommodation must be provided to enable a qualified applicant to perform the essential functions of the job he or she is seeking, and to enable a qualified employee with a disability to perform the essential functions of a job currently held."

• "The reasonable accommodation obligation applies only to accommodations that reduce barriers to employment related to a person"s disability."

• "Reasonable accommodation applies to modifications that specifically assist an individual in performing the duties of a particular job."

• "An undue hardship is an action that requires significant difficulty or expense in relation to the size of the employer, the resources available, and the nature of the operation."

• "A doctor who conducts medical examinations for an employer should not be responsible for making employment decisions or deciding whether or not it is possible to make a reasonable accommodation for a person with a disability. That responsibility lies with the employer."

• "Job restructuring or job modification is a form of reasonable accommodation which enables many qualified individuals with disabilities to perform jobs effectively...an employer is not required to reallocate essential functions of a job as a reasonable accommodation. Essential functions, by definition, are those that a qualified individual must perform, with or without an accommodation."

• "The ADA"s requirements for certain types of adjustments and modifications to meet the reasonable accommodation obligation do not prevent an employer from providing accommodations beyond those required by the ADA."

In summary, the ADA defines reasonable accommodation as modifications that enable an employee with a disability to perform the essential functions of the job currently held, i.e. a Police Officer. Nevertheless, as stated in the last bullet on reasonable accommodation, the employer is not prevented from providing accommodations beyond those required by the ADA as long as the accommodations are within the scope set forth by the ADA regulations.

Based on the information gathered from the Survey of Records of Administration Assignments, it appears the SFPD"s policies and practices with regard to modified duty assignments is consistent with Workers Compensation and state Labor Code requirements. As a result of past practices, and the Department"s willingness to make accommodations for officers requiring modified duty assignments, several sworn officers have held civilian duties for a number of years. The SFPD"s new General Order 11.12 establishes clear guidelines and policies regarding the types of accommodation that will be made and are consistent with established state laws.

It should be noted that the state laws regarding Workers Compensation are more liberal than the "reasonable accommodation requirements" set forth in the federal ADA regulations. It should also be noted that the federal ADA regulations do not necessarily apply to the accommodations made for officers on modified duty assignments. In most cases in order to have a claim under ADA, the Department will have already stated that there is not a modified duty assignment available that would meet the needs of the "disabled" officer, and the Retirement Board has turned down the officer"s request for an Industrial Disability Retirement. In such cases, it is incumbent upon the Department to clearly demonstrate why there is not a suitable assignment and press the Retirement Board to approve the officer"s request for the IDR.

Results of the Policy - Cost to the Department

In order to determine the number of Modified Duty positions and the cost to the Department, the Budget Analyst reviewed three years of OSHA Employee Claim Data. This data shows the number of days away from work (lost days), rest days (days on modified duty), and illnesses. Table 2.1 indicates the total number of claims across all ranks in the Department for calendar years 1995 through 1997, whether the claim resulted in disability leave or modified duty, or was due to an illness, and the number of claims which resulted in no days lost. Table 2.1 Nature of Worker"s Compensation Claims Filed by Sworn Officers, 1995-1997  

Year Total Number of Claims Disability leave or modified duty Illness No days lost
1995 700 489 51 211
1996 684 418 34 266
1997 937* 742* 52* 195*
*Based on 1997 YTD information through September 30, 1997 annualized.

Table 2.2 indicates the number of claims, the days in modified duty positions, the number of Full Time Equivalents (FTEs) and the estimated costs of modified duty assignments. Table 2.2 Modified Duty  

Modified Duty CY 1995 CY 1996 CY 1997** Average
Number of total claims 700 684 937** 773
Days in Modified Duty 3,452 3,044 6,488** 4,328
Number of FTEs* 13.23 11.66 24.86** 16.58
Estimated Cost*** $846,561 $746,100 $1,590,741 $1,061,134
*Number of FTEs = number of total hours on modified duty = days x 8 hours per day/ 2,088 hours per year per FTE. **Based on 1997 YTD information through September 30, 1997, annualized. ***Estimated Cost = Number of FTEs x Q-2 Salary with benefits @ $63,988. Table 2.3 Temporary Disability Leave  
Temporary Disability Leave CY 1995 CY 1996 CY 1997** Average
Days on Disability Leave  6,827 5,958 7,064** 6,616
Number of FTEs* 29.46 25.16 30.12** 28.25
Estimated Cost*** $1,885,086 $1,609,938 $1,927,318 $1,807,447
*Number of FTEs = number of total hours lost due to disability leave = days x 8 hours per day/ 2088 hours per year per FTE. **Based on 1997 YTD information through September 30, 1997. ***Estimated Cost = Number of FTEs x Q-2 Salary with benefits @ $63,988.

As shown in Tables 2.1, 2.2, and 2.3, there are an average of 773 claims that are filed on an annual basis. These claims result in an average of approximately 28.25 FTEs lost due to annual temporary disability leave and an average of approximately 16.58 per year on modified duty over the three-year period. Temporary disability leave results in an average annual cost of at least $1,807,661. (28.25 FTEs x Q-2 salary and benefits of $63,988) The modified duty positions result in an average annual cost of at least $1,060,921. (16.58 FTEs x Q-2 salary and benefits of $63,988.)

Based on the data gathered, we assume that there will be some injured employees who will require more than the 365 days as set forth in General Order 11.12. In order to cover all of the members, the Budget Analyst has determined that there should be a maximum time period of 365 days for modified duty positions. Based on an average of 16.58 FTEs needed for modified duty positions per year, the Department should budget at least 25 positions per year for modified duty (16.58 x 1.5 = 24.87). In order to accommodate officers on temporary disability leave, at least an additional 28 sworn positions should be reserved for a minimum total of 53 sworn positions which should be reserved for officers to perform at full duty. In order to provide the Department with additional flexibility, we recommend that a total of 55 positions (26 for modified duty and 29 for temporary disability leave), be reserved for officers on modified duty and temporary disability leave.

The Department currently has 121 sworn positions budgeted to provide positions to accommodate officers on Modified Duty or disability leave. Based on the analysis above, we recommend eliminating 66 (121 less 55) of the 121 positions currently budgeted to accommodate officers on modified duty and disability leave. The elimination of these positions should be phased in over a three-year period. This reduction in budgeted positions represents savings to the Department of $4,223,208 (66 positions x $63,988 per position).

Conclusions

The SFPD defines modified duty as, assignments in which a temporarily disabled employee performs work outside his or her normal duties that accommodates his or her medical restrictions. The decision to place an officer on modified duty status is made upon certification by the treating physician and is subject to the availability of a suitable modified duty position that is consistent with the physician"s recommendations.

The current policies and practices of the SFPD do not establish a specific number of modified duty positions. However, the new General Order does establish the maximum length of time an officer can be assigned to modified duty. Since the SFPD has not established a maximum number of positions that should be budgeted to accommodate officers who are on light or modified duty, many sworn officers are unnecessarily assigned to perform civilian functions.

To address the deficiencies in the current Return to Work policies, the SFPD drafted and approved General Order 11.12 which sets a time limit of 365 days for temporary disabled officers who are serving in modified duty positions. After the 365 day period has elapsed, an assessment of the officer"s ability to return to their original duties would be made. If at that time it is determined that the officer will not be able to return to their original duties, steps would be taken to either make further accommodations or move the officer toward the option of retirement.

To further address the issue of the number of officers assigned to modified duty and the duration of such assignments the SFPD should: a) eliminate 66 of the 121 positions which are currently budgeted to accommodate officers on modified duty or disability leave and clearly define the conditions under which permanently disabled officers would be placed on modified duty assignments; b) clearly define the steps that will be taken in the event that an officer completes the 365 days of modified duty but is still disabled and is unable or unwilling to obtain disability retirement; c) inform the Retirement Board of the maximum modified duty positions available and the time limit that sworn officers may serve in modified duty positions and work with the Retirement Board to develop a policy for retiring officers who are permanently disabled rather than keeping them in modified duty positions by accommodating them above and beyond the Workers Compensation and state Labor Code requirements; and f) utilize the new Workers Compensation Claims Management System to monitor officers on modified.

There are situations under which the Department would be required to comply with federal ADA standards. These situations are not likely to occur until an officer"s disability has been determined to be permanent and stationary, the Department has determined that there are not suitable modified duty assignments for said officer and the Retirement Board has turned down the officer"s request for an IDR. When these circumstances occur, it is the responsibility of the Department of clearly state, to the Retirement Board, why an accommodation cannot be made and press the Retirement Board to grant the request for the IDR.

Eliminating 66 of the 121 positions currently used for modified duty and temporary disability leave would represent an annual savings of over $4 million without reducing the current level of police services.

Recommendations

The SFPD should:

2.1.1 As prescribed by the Budget Analyst, maintain the time limit of 365 days, set by General Order 11.12 for temporarily disabled officers who are serving in modified duty positions. Such a time limit is consistent with the new General Order 11.12, approved in November, 1997;

2.1.2 Eliminate 66 of the 121 sworn positions which are currently budgeted to accommodate officers on modified duty or temporary disability leave and clearly define the conditions for placing permanently disabled officers in modified duty assignments;

2.1.3 Clearly define the steps that will be taken in the event that an officer completes the 365 days of modified duty but is still disabled and is unable or unwilling to obtain disability retirement;

2.1.4 Define "reasonable accommodation" under the federal ADA and provide details on how the SFPD"s required actions under Workers Compensation and the State Labor Code diverge from the Federal ADA standard. Additionally, the SFPD should clearly articulate its method of making such Workers Compensation and ADA accommodations, for officers who are temporarily or permanently disabled;

2.1.5 Inform the Retirement Board as to the maximum number of modified duty positions and the time limit that sworn officers may serve on modified duty. Work with the Retirement Board to develop a policy for retiring officers who are permanently disabled as an alternative to keeping them in modified duty positions and reasonably accommodating them above and beyond required standards;

2.1.6 Continue the implementation of the new Workers Compensation Claims Management System as a tool for tracking and reporting on Officers on modified duty and/or those who are permanently assigned to non-sworn duties.

Savings and Benefits

Eliminating 66 of the 121 positions currently used for modified duty and temporary disability leave would represent an annual savings of over $4 million without reducing the current level of police services.

By clearly articulating the new policies and practices regarding the Workers Compensation and State Labor Code Return to Work and federal ADA Reasonable Accommodation polices, as recommended by the Budget Analyst, the SFPD will realize improved management of officers who hold modified duty positions or have permanent accommodations, including successful attempts to obtain IDRs for permanently disabled officers. There will also be clearer guidelines for the injured officers who return to work through modified duty or reasonable accommodations.