Returning employees to work after an injury can raise questions from both the employee and the employer. Must you keep someone on staff who is restricted to part-time hours (when the position needs to be full-time)? If an employee comes back to work without restrictions but still requests a reduced time schedule, how should you respond? What if the employee disagrees with the medical release to return to work and gets a new work restriction from a different physician outside of the system? These are all questions that were addressed by David Schmit in a recent BLR webinar. Read these answers and more here.
Q. A physician who was previously injured in our clinic was allowed to return back to work with no restrictions. However, he is now requesting an alternative work schedule in which he wants to both come in at a later time and also work one less day per week. What should we do?
A. If he has no restrictions, there’s no reason he shouldn’t pull the same load as everyone else. However, if there is some other or new medical rationale behind his new request, that may need to be accommodated. This new medical concern would need to be documented just as before – by his own medical professional, not himself (i.e. just because he is a doctor in his own right does not mean he can write his own medical certifications).
Q. We have an employee who was out for a couple of months on workers’ compensation leave. We allowed her to return to work on a reduced schedule. She has been back at work for about one year now and is still on a reduced work schedule. Her work location needs someone in her position to work full-time hours. Is it possible to terminate her because she can’t return to her full-time hours? Or do we need to allow her to work a reduced schedule indefinitely?
A. The first question is whether or not there is a medical justification for the reduced schedule. The second question is about the stated need for someone working full-time hours in the role—you need to ensure there is a true business necessity for that argument and that the requirement for full-time hours can be justified. Even if it can be justified, there needs to be an explanation of why the staffing shortage couldn’t be made up by someone else working the other hours (such as a temporary or additional part-time employee).
Assuming all of those items are justified and there is a true business necessity for a single individual to work full-time hours, then you may be able to transition the employee out of that role. In that case, see if you can offer that person an alternative spot where full-time hours are not required. Then the original position could be filled by someone who is full-time. If there is truly no other alternative role for her, then you may be able to let her go. In that case, consider giving her a priority right of rehire. Regardless, be sure to go through the whole analysis of business necessity. While it’s no question that this worker is costing you money, the question is whether you can objectively defend such a decision.
Q. We have a situation with an injured worker who was given a medical release by the workers’ compensation doctor. She returned to work after being off from her position from a long time-off claim. However, she disagrees with the medical release and went to her own doctor, who put her off work again. What can the employer do at this point?
A. This is something that depends on what state you’re in. In California, you as the employer have the right to base your actions on any credible medical evidence. She has her doctor, you have your doctor—you’re entitled to rely on your doctor. Her remedy then is to take this to the workers’ compensation board and have the board make a decision. However, if she doesn’t return to work, you have the right to terminate her and that will also come up for a decision at the workers’ compensation appeals board and you’ll have a trial.
Q. We have a situation with an employee who has been out of work for some time. This person did return to work briefly, but now has a litigated claim which states that they must see a doctor before returning to work again. The employee did not inform their supervisor of such a requirement and they have worked three shifts since this claim has been in litigation. Does that negate the claim that the associate cannot work without medical approval?
A. It appears as though the time worked was contrary to doctors’ orders. As evidence, it doesn’t necessarily prove anything. Sometimes we do things we shouldn’t when we’re injured (and we can tolerate these things for a certain amount of time). As an employer, you’re in the best spot you can be when you’re strictly following the doctor’s advice. In this case, it doesn’t appear as though you’ve got a situation where there is a question over the injury. You’re in a good spot if you just follow the doctor’s advice now.
Q. We have an employee that is in an engineering position (a draftsman) who has been unable to perform his job due to carpal tunnel. The exact designation of carpal tunnel is assumed, but has not been officially designated; the determination has been ongoing for 6 months. Meanwhile, the quality of the employee’s work is not up-to-par. He does about 25 percent of the work anyone else does. We are concerned about how to discipline the employee or take further action without putting the company in jeopardy?
A. If the quantity and quality of the work is deficient, this is where you need to focus your attention. Document that. Even though quality can be difficult to document objectively, you need to do the best you can. Keep your documentation away from anything related to the carpal tunnel syndrome. Focus on the deficiencies in the performance—that’s the key. (This may be complicated by the deficiencies being caused by the carpal tunnel).
Your company has the right to run efficiently and profitably. You may have to put him on temporary disability until he’s able to come back full time and meet your productivity and quality standards. Work with your workers’ compensation carrier on that.
For more information on staying in compliance with workers’ compensation laws when returning injured employees to work, order the webinar recording of "Workers’ Comp: How to Discipline or Terminate Claimants While Minimizing Your Legal Risks." To register for a future webinar, visit http://catalog.blr.com/audio.
Attorney David Schmit is the founder of Schmit Law in Oakland, California. Schmit represents employers’ interests in state and federal courts and administrative forums in workers’ compensation matters, including workers’ compensation, civil personal injury law, and wrongful termination cases.