Job phase out while on WC

dchr9203

[font size="1" color="#FF0000"]LAST EDITED ON 10-03-03 AT 04:25PM (CST)[/font][p]We have an employee who's made a WC claim, that we suspect is "dragging" out the phase out of his position. He has poor attendance records, a few no call no shows (I'm new with the company). Do you see any potential issues if we go ahead and phase out his position early? He claims heavy lifting is a problem, which happens to be a key part of his position. Furniture moving, carpentry including hanging drywall. We have no light-duty positions for him.

This will end up being a layoff. The work he was doing before his claimed injury had to be contracted out and will be completed shortly, so I would say this will be a layoff.

Thanks

HR in Okla

Are you saying this was a planned RIF or elimination of his position? Did he know this before filing the WC claim? Maybe if you clarify this, we'll get some of our WC gurus involved in discussion.

dchr9203

I have edited the message. It will be a layoff as his work will have been completed by outside contractors in his absence.

Thanks for the input!

Don D

It's still unclear. Arranging for a contractor to do someone's job does not necessary equate to a planned phasing out of a position prior to one going out on comp. In any event, comp, unlike FMLA, is not a job protection statute. If the company had a plan in motion and that job was targeted for elimination prior to his injury, comp would not preclude moving forward with it, and he would be laid off by the RIF. You don't get off the hook that easily in some states though. You may be required to prove that the plan was in motion, it was somehow noted in writing, there had been discussions by executives and it was moving along prior to the injury.

You will still incur the same exact medical costs even if you lay him off, and perhaps more, after his lawyer comes knocking.

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 10-09-03 AT 10:33AM (CST)[/font][p]Workers Comp, unlike FMLA, is not a job protection statute. Your dilemma, if you encounter one, will likely be showing convincingly that your company did in fact plan to eliminate the job prior to the injury. An injury would not impede a plan that you already have in motion such as job elimination. As with FMLA, if you can show that company officials had discussed, planned, scheduled, made notes about, written memos about, considered and tabulated the economic impact of.....eliminating a job, a function, a position or a department, then you should not have a problem. Your state comp laws may regulate whether or not you must have a position for him when he returns. Ours does not. I would also tell you that because you simply assigned the work to a contractor in this person's absence doesn't really sound meaningful or convincing.

(edit) Didn't mean to double post part of the same reply, but it didn't appear the other post was going to show up at all.

mjindra

We're in the middle of this situation right now, and have contacted our legal counsel. Nothing looks good in our favor.

Our ee was injured in his 20th day of work, the same day he would have been terminated because of poor work performance and bad attendance.

He was on Worker's Comp for two months, on and off, and even on light duty, he was a crappy employee.

Once he was released back to work, we laid him off because there was no work for him. We no longer had enough work to support him coming back. Now that we're looking at hiring somebody, (and we don't want him back), our attorney says we're obligated to bring him back.

"We are obligated to bring him back and give him a job, because he was injured while working for us". It's our responsibility to get him back to work.

Does that sound correct? Not to me, but I'm at the mercy of our legal counsel. On top of that, if he performs badly and we fire him, there's a chance we'll be hit by a "Performa Clause" saying we brought him back to WATCH him and just get rid of him. Is our attorney just paranoid? Or am I naive?

Don D

It depends totally on Wisconsin Workers' Compensation law. In Mississippi, that would not be the case. There is no job protection illusion in our state law. Nor is there a 'bring back' assumption or mandate in the law here. I know we often recommend second medical opinions, but, you may want a second LEGAL opinion on this one.

LindaS

Mjindra - while I am not an attorney, I am in Wisconsin and as long as I had the documentation to support the fact that he would have been terminated prior to his accident, I would go ahead and terminate him. He has the option at that point to file a "refusal to rehire" claim with the state which will cost your company time and money to fight (if, after reading your documentation the state decides there is probable cause) but a bad employee should not be provided job protection just because he injured himself at the last minute.

As an FYI - I have been in a situation wherein a former employee filed a Refusal to Rehire claim against a company I worked for and, based on my testimony (the HR director didn't ask for my input prior to the hearing), we won the case.

mjindra

Thanks for the feedback. We’re very close to having his physical and drug screen done to bring him back, because we feel that we’re out of options.

I may have to give it a second thought yet!