Workers Comp

sssteel

Hello my name is Scott King and I am fairly new to Human Resources and I have hit a subject that I am not to sure about. We have an employee who was hired on as a driver for our company a little over a year ago. About 6 months into his employment he hurt his back and required medical attention. He was placed on restrictions and was out of the truck for close to 3 months. During this time we discovered that he has had prior problems with his back and that this injury he suffered while driving for us aggrivated a preexisting condition. He was able to get back in the truck for a short period of time but was placed back on restrictions because he said he was having to much pain in the truck. Our truck has been sitting since August waiting for this employee to be able to get back in it. The cost of our truck sitting and not running for that amount of time is close 100,000 dollars. We have hired a new driver to fill his spot but the question is what are we allowed to do with our employee? We do not feel he is going to be able to continue in the truck because of this injury. We are willing to offer him a job in our plant but it would be at a reduced pay. If he can't accept this we may be forced to let him go. What legal issues could arise from this? What can I do to help protect the company? Does anyone have any other suggestion as to what we could do for our employee? Has anyone had a situation like this before and if you have how did you handle it? Thank you all for your time and your input.

System

Welcome to the Forum...
There are several issues here: first, get with your comp carrier to determine if your state worker compensation laws allow for any offset for the pre-existing condition, allowing you to experience reduced liability due to a aggravation of a pre-existing injury vs. full liability for a new injury. Secondly, you are not required (unless your state says otherwise) to offer light duty or accomodate him by offering a new position. You also need to determine what your past practice has been at your company when dealing with similar situations and be consistent with that practice (if you want to change the practice, do so after notifying the emloyees you are changing your policy/practice, effective X date) Normally, if an employee is unable to perform the essential functions of his job due to the injury you do not need to keep him employed. But be careful you are not violating a potential ADA claim and a duty to reasonably accommodate. Even an ADA claim would be difficult to prevail if the essential functions are driving, and he can't drive, there is probably no "reasonable" accommodation that could be made. I would not terminate the employee at this juncture as you would be inviting a retaliatory discharge claim. I think the best course of action is to see how his recovery goes, arrange for all the necessary treatment, pay his medical bills, pay his due indemnity payments and see what impairment rating he is ultimately given. Because you have already filled the position with another employee, the job is beng handled, and that is what you are most concerned about. If ultimately he is deemed unable to perform the job, you can proceed to terminate. As always, double check your intentions with an attorney before you act.

NaeNae55

Agree. Would also like to add that if you want to offer the employee another job you can do so. When we have had to offer an employee another job which paid less we had an adjustment period. The employee was gradually reduced to the new rate over 3 pay periods (6 weeks). This helped them adjust and made it seem less of a shock. We have not lost any employees who had to go through this.

Good luck!

Nae

System

You might want to learn more about the Americans with Disabilities Act (ADA). An important statement in the Act is that "An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources, and the nature and structure of its operation"


Also, for the future, if you don't already, you might want to add a Physical Information question to your job application such as "Are you able to perform the essential functions of the position you are applying for with or without reasonable accommodation?". The EEOC, Department of Labor and Department of L & I are great free resources that will guide you on how to deal with this issue. Good luck!

joannie

We are in the midst of an identical situation. Our employment law attorney advised us not to terminate until comp claim has been settled, even though we have a doctor's statement that the ee will not be able to drive again, so we filled the truck and took the injured ee out of the driver pool and placed him in a miscellanous category. I hate to muddy the water, but you stated the ee has now been with your company a little over a year. Are you required to comply with FMLA? If so, won't you have to allow him his 12 weeks? Nae, anybody else, opinions on this? My ee's 1 year anniversary is coming up in a couple of weeks.

NaeNae55

I believe he also has to have worked 1250 hours in the previous year, which is just over 31 weeks. If the employee meets this qualification and your company must provide FMLA (50 employees, yada yada) then you must provide FMLA. The good news is that you can start the clock while they are still out on work comp.

Nae

joannie

The key phrase in that would be "worked 1250 hours" not employed 1250 hours? Time off on comp would not count as hours worked, correct?

Susan in La

Correct, it is hours worked, not hours paid.