REPLACING WORKERS ON WC BENEFITS

CHEISER

WHAT ARE THE PROCEDURES FOR NOTIFYING THE EMPLOYEE ON WC THAT HIS/HER POSITION HAS BEEN FILLED WITH ANOTHER WORKER BECAUSE PRODUCTION CANNOT STOP WHEN IT IS UNKNOWN HOW LONG AN INJURED EMPLOYEE WILL BE UNABLE TO RETURN TO WORK?

Theresa Gegen TX

Before permanently replacing the worker, you need to make sure that you have complied with the Family & Medical Leave Act - is the worker eligible and has the worker exhaused all his leave. (This includes the state law and also your federal law). Also, you need to check the specifics of your state worker's compensation law -- it may provide job protection. (In Texas, employers can enforce attendance policies, but employees can sue for workers' compensation discrimination [saying the real reason you fired me is not because of my attendance, but because I made a workers' compensation claim). This is a difficult claim to defend. You also need to make sure that you have applied your company leave policies in a non-discriminatory manner (so if the company grants medical leave, and says the employee will not be replaced during that time, all employees are entitled to the benefit. You may also have an issue under the ADA that requires a leave for reasonable accomodation. Or if there is a vacancies the employee can fill with his medical restrictions, you may have to offer it to him.

If your company has complied with these laws, and is now legally able to permanently replace the employee, I would inform the employee in writing that his job may now be permanently filled, and that he is free to reapply when his condition improves and will be considered for any vacancies just like any other applicant. It is important that the employee understand that it is his burden to reapply for positions in the future.

Good Luck!