Light Duty

jenhall

Hello everyone. We have an ee who has hurt his back and we've been going through the proper work comp channels for the past couple of months. There has been about a week or so loss time all in all and everytime the ee returns to work the specialist puts him on light duty. We've got a temp in to fill his place (this is a warehouse position) and the manager is working forklifts also. The manager came to me last week and he wants to let the employee go because we have nothing he can do on light duty and he feels like we need to get two full time people who are not restricted in order to catch up. My question is, can we let this guy go without risking a lawsuit? Any help on this is appreciated.

Leslie

Did you put him on FMLA? It can run concurrent with Work Comp. If you did, he still has 8 weeks. If you didn't he still has 12.

Don D

You will have to call the Alabama Workers' Comp Commission to check on state-specific law, or check with your labor attorney prior to termination. In Mississippi, there is no such thing as a requirement that one be retained who cannot perform the essential functions of the job. They can be and are regularly terminated when they can advance beyond a restricted duty stage.

Be careful about following the termination advice of the manager though. Managers are sometimes not concerned with how a decision might impact your liability. But, typically, yes, he can be terminated if he is not and cannot perform the job's duties. It is also true that you need not put a person back to work on what you called light duty, simply because a physician or specialist released them for light duty. The company makes that decision, not the specialist or the comp carrier. They all have interests and agendas different from your own.

jenhall

Unfortunately we do not qualify for FMLA at our company. This ee has been working light duty on his days back but the manager does not have enough light duty in the warehouse to keep him full time. I will call AL Work Comp and our attorney and make sure we are taking the legal route. I have a feeling our manager wants and easy route. Thanks for your help.

sandra_d

Don't forget that you will probably continue to be responsible for his lost wages until he gets another job, as he remains on work restrictions. (Your work comp carrier will actually pay the bill, but comes back to you in higher experience/mod factor, hence, higher premiums.)

ray a

Hence, it is sometimes better to do whatever you can to keep an ee on light duty until cleared by the doctor.

Leslie

No FMLA eligibility than you can term. But as Ray A says, it is sometimes better to do whatever you can to keep an ee on light duty until cleared by the doctor. Our work comp carrier laments everytime we do a review that our company has little or no light duty.

lorrie

We try to keep employees working if it is considered temporary light duty, even if we basically make up a job for them. This might include a lot of menial tasks but seems to be better than letting them continue to receive a check for sitting at home. We figure that our company is paying the ee either way, since the costs paid by the insurance company are passed on to us. Also, with the proper management, this is an opportunity to evaluate the true nature of the injury, and to make sure that the ee really is following those restrictions for at least a portion of their day.

If the light duty restrictions are made permanent (when the doctor determines the ee has reached maximum medical improvement), and the ee cannot perform the primary functions of their job, and if we have no other jobs available, then we terminate.

Of course, there are exceptions to every rule, but this is our general philosophy.

Ruby Tuesday

I have to agree with Lorrie. We also find sometimes menial jobs (counting paperclips) for our employees on light duty. We are a construction company and I can tell you our employees do NOT like being inside filing, stapling, copying, etc... It is amazing how fast they heal.

We believe that if our employees have the mind-set that our company will work with all doctors to get the injured employee on a light-duty program there will be less abuse of the system. Employees that are at work even in a light-duty capacity tend to heal faster than if they were sitting at home.