Terminating an EE on Worker's Comp

Crout

Our company is based in Pennsylvania. We have an EE who has been on restricted duty for the last few months on Worker's Comp. Her malady was a knee injury, which was corrected with surgery. A few weeks ago she was cleared to return to her regular assignment. I should mention that she enjoyed her temporary assignment. Yesterday she left her work site, complaining of burning in her knee. The report we got back from the Doc was that she was cleared for restricted duty, which in essence means that she can't perform her regular job. The Doc also wants to see her again next week. We no longer have a temporary assignment for her, so we have no where for her to go. And quite honestly, the feeling is that she trying to manipulate the system. Can we terminate her based on the assumption that she can no longer do her job? I spoke with a person from PA Worker's Comp who informed me that there is no job protection for someone on Worker's Comp. We realize that we would have to pay Unemployment Compensation, but feel that it is worth it. Are there any other pitfalls in terminating this person? Thanks for your input.

Lori B

While the work comp laws do not guarantee a position, there is nothing to stop the ee from filing the deadly retaliation suit against you. Most states have a public policy against firing someone for a work comp claim. For ex, in Illinois it can trigger things like punitive damages. You and I know that you aren't firing them for the claim - but that doesn't stop the ee from making the argument that you did.

You need to proceed very, very cautiously here and ensure that your documentation is good. You are on shifting quick sand with these types of facts.

Another point to think about. This is more than an unemployment insurance cost. From a risk management side, assess the hit to your workers' compensation reserves for this claim and increased premiums. When we have claimants on work comp, we explore every option of restricted duty just to bring the work comp benefit cost down. You want these people working - not sitting at home watching TV to hear the cheesy ads of work comp attorneys....If that means having them shredding paper and stuffing envelopes, we do it. Having said that, we make it quite clear to all ees that light duty is not perpetual. We try to cap it at 9 months and it is only available for work comp injuries. You may also want to talk to your work comp carrier about an education campaign for work comp fraud. Our carrier, CHUBB, has all sorts of posters and training ideas to help get the word out to managers and ees that you monitor work comp carefully.

Your post is getting at a lot of issues and a lot of risk weighing needs to be done. I look forward to reading more posts on this topic b/c it affects us all at one point or another. Good luck. Lori

Margaret Morford

I agree with the individual above. Put her back to work on restricted duty. Don't let her sit at home. However, the light duty job she likes does not necessarily have to be the one you return her to. You can assign her to another light duty assignment that she may not like so much. We used to put some (questionable ones usually) of our restricted duty employees out in the un-air conditioned warehouse doing quality control on orders before they were mailed out. It was sit down work, very boring, hot work inspecting boxes for 8 hours. It was miraculous how quickly these people recovered to full duty.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
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