W/C Retaliation claim and OSHA

KCHR

I am the HR Manager for a conglomerate of staffing firms. We received a notice from OSHA yesterday stating that a temporary employee of ours had claimed that we terminated her for reporting a work place injury. The facts: The employee worked on a temporary assignment at a chemical manufacturing plant and though she had safety training and PPE (goggles), she got a chemical substance in her eye early in her scheduled shift. She was treated by our work comp provider and released for modified duty with the following restrictions: No driving, operating heavy machinery, or doing work involving heights. The essential functions of the position did not interfere in any way with these restrictions. Unfortunately, the employee went straight home instead of back to her shift. The next day she was not present at the start of her shift and had not called in during the appropriate time frame per our policy. She did eventually call in that her eye was hurting too much to work. She had a follow-up appointment with the doctor that day that she missed. Instead, she went to see the doctor the next day and was released with no restrictions. By that time, the client company had decided that they did not want her back, citing a variety of reasons from not returning the day of the injury, and missing the next two days without calling in at the appropriate time. The client also claims that the employee had been telling their staff for weeks that she was on numerous anti-depressants, and though we had thoroughly drug tested before the assignment and after the injury with negative results, they felt that if true, her heavy use of perscriptions contributed to the accident and made her a liability (the employee does not know this).
We informed the employee that the client did not want her to return to her assignment, but that she was still employed by us and to call in to make herself available so that we could send her to a new assignment. The employee told us that she was going to sue us over the incident, and did not call in for subsequent work, which led to her termination.
The client company received an OSHA complaint as well and is not being cooperative with us. How do you suggest that I proceed?

POPEYE

>>The client company received an OSHA complaint as
>well and is not being cooperative with us. How
>do you suggest that I proceed?


Having been on both sides of the fence with this, currently use temp. staffing and worked in the industry, both you and the client company are responsible for correctly reporting and logging information for OSHA and WC. I hope that the client has provided you with a first report of work injury and any investigative notes taken, and I hope that you have supplied them with the appropriate findings from the physician. With that said, if this played out as you have stated, the EE did not report to work as scheduled, you offered to find additional work and the EE did not maintain contact, I don't see that you have a legal concern (only my opinion, not legal advice). Can she sue? Sure, and from the tone of your post, probably will. Take care of your OSHA and WC reporting responsibilities, document, document and document, and let the client worry about their responsibilities.

LivindonSouth

If you're feeling real charitable, you might also remind the employer that HE is required to log the incident on HIS OSHA Log. Your comp, his OSHA.

Be careful; she may have an ADA claim as well since depression is typically a disability. But, since when do anti depressants show up on drug screens?




Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.

KCHR

Thanks for the feedback! I agree that the client made a mistake by treating her as if she had a disability simply because she was overheard saying she had a perscription for fighting depression. Fortunately, we told her to call in for new assignments after the client dismissed her, so I'm hoping we won't be part of any ADA related action.
A ten panel drug screen would have revealed the prescence of the medication. However, the client never indicated that we should use more than the traditional 5 panel drug screen.
I have followed popeye's advice and documented everything.
Just as a side note. The employee finally called in today looking for more work, the same day we received her unemployment insurance paperwork from the state. Gotta love people!