142 RETURN TO WORK PROGRAM

142.1 An employee with partial disabilities shall participate in modified work programs at the direction of the Program.

142.2 An employee who is medically released to work in full or modified duty and cannot return to work with the employing agency shall notify the Program and enroll in the Return to Work Program within three (3) days of receiving the medical release. An employee's right to compensation shall be suspended for failure to comply with the provision of this subsection.

142.3 The Program shall attempt to place injured employees within their pre-injury agency, or within another agency when modified work assignments are not available within the pre-injury employing agency. Once assigned to a modified duty placement, the pre-injury employing agency is responsible for the salary of the employee.

142.4 While on modified duty assignment, the employee's rate of pay shall be adjusted as follows:

(a) An employee who is able to perform the duties of his or her pre-injury position during the modified duty assignment period is entitled to receive compensation at the same rate of pay as received prior to the injury and indemnity compensation shall cease.

(b) An employee who is not able to perform the full scope of duties of his or her pre-injury position shall receive a modified rate of compensation closest to the rate prior to the injury, without exceeding it. A partial disability benefit will be applied if appropriate, at the rate of sixty-six and two-thirds percent (66 2/3%) or, if the employee is eligible for augmented pay pursuant to Section 2310 of the Act, seventy-five percent (75%) of the difference between the pre-disability rate and the modified duty rate.

(c) The pre-injury rate of pay shall not be exceeded during the modified duty assignment.

142.5 The modified duty assignment shall be temporary. The modified duty assignment may have a minimum duration of two (2) basic nonovertime workdays, as that term is defined in § 1-612.01, and a maximum duration of one hundred eighty (180) days (assigned in ninety (90)-day increments) in any twelve (12)-month period. For those employees whose basic nonovertime workday may exceed eight (8) hours such as police officers or firefighters, the basic nonovertime workday shall be the shift, or tour of duty, worked on a regularly recurring basis for the three (3) months immediately preceding the injury.

142.6 Employees with disabilities who are offered a modified duty assignment and elect not to accept the modified duty assignment shall forfeit any further disability compensation benefits and benefits shall terminate. If compensation benefits were paid during the period of forfeiture, the Program shall recover the payments through a deduction from future compensation benefits owed to the employee or otherwise recovered under Section 2329 of the Act.

142.7 Notice of available temporary modified duty assignment pursuant to Section 2347 of the Act shall be provided orally and in writing to the employee and the human resources advisor for the Employing Agency and agency where the employee is being assigned, if different from the employing agency.

142.8 Notice of an available temporary modified duty assignment pursuant to Section 2347 of the Act shall include:

(a) The location and hours of the assignment;

(b) The essential job functions;

(c) The restrictions specified by the physician; and

(d) The rate of compensation to be received by the employee.

142.9 An employee must elect to accept an available modified duty assignment within seven (7) days of issuance. Failure to respond to the notice shall be deemed a rejection of the proposed temporary modified duty assignment, further benefits shall be deemed forfeited and benefits shall terminate.

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017).