W/C for "strees" - need advice

LindaS

This post is being written on behalf of a friend of mine, she is a GM for a large hotel and a housekeeper was hired back in April (I posted about this before). She claimed an injury to her shoulder back in June and, in reviewing her medical history, it was found that she received a settlement from a previous employer for the same type of injury due to permanent restrictions (she did not divulge this info. to the new employer upon hire). Anyway, the claim was initially accepted and the hotel has been accomodating her restrictions since. Here comes the problem...

This EE has been disregarding the rest of the hotel's policies. She reports to work late without calling, sometimes not coming in at all. She has created numerous personnel issues due to getting involved in situations that are no concern of hers, etc. Last week she was reprimanded by the GM because she reported to work 1 1/2 hours late w/o calling. She was scheduled to work throughout last weekend but did not call and did not report for work.

Yesterday my friend received a copy of a letter that was sent to the W/C carrier stating that this EE will no longer be able to work for the hotel due to "stress" caused by the "harassment" of the GM. Now my friend is asking what they can do with the situation.

Never having been involved in this type of situation, I don't have much advice and am looking to you for assistance.

FYI - this EE has not been employed long enough to qualify for FMLA.

What steps should she take?

Don D

It depends on who wrote that letter! If it was written by the employee, your friend should do nothing other than terminate the employee. If it was written by a doctor, I would recommend your friend should call the carrier's comp adjuster who's handling this issue to see if the absence will be ruled by them as comp. If not, I would terminate. Then, if that letter was written by an attorney, I'd get my own involved.

TLC Shelly

I know you posted this quite a while ago. I hope it's not too late to put in my two cents.

I had an issue a couple years ago where an employee tried to claim worker's comp because her client was "driving her crazy." She said that dealing with her client on a daily basis was causing her considerable stress, and that she was on the edge of a nervous breakdown. She filed for worker's comp, but was denied. I don't remember all the details (as I said, this was a couple years ago and the file is in storage) but the jist of it was that since there was no specific incident she could tie it to and no medical problem, it did not qualify for WC under Idaho law.

But your post did bring to mind another issue. The letter stated that the employee could no longer work "due to stress caused by the harassment of the GM." This sounds to me like the employee could quit and file for unemployment based on constructive termination--basically being forced to quit due to hostile work environment or disparate treatment. I agree with Don--it's best to terminate her and be rid of the problems, but your friend needs to make sure that everything is documented very well to defend against any future claims.

And, yes, if the letter came from an attorney, she should involve the company's attorney in any response.

System

Workers' Comp cases of stress induced by the employer are RARELY founded and approved. An employee can be stressed about being told to do his/her job or to show up at work on time. This person should have been counseled and warned for performance issues, and then terminated. If that causes her stress, well then I don't know what to say except, 'too bad.' This doesn't sound like a constructive discharge. Sounds more like 'wagging the dog.'

Parabeagle

"This EE has been disregarding the rest of the hotel's policies. She reports to work late without calling, sometimes not coming in at all. She has created numerous personnel issues due to getting involved in situations that are no concern of hers, etc. Last week she was reprimanded by the GM because she reported to work 1 1/2 hours late w/o calling. She was scheduled to work throughout last weekend but did not call and did not report for work."

The so-called "harassment" and "stress" matters aside, it sounds as though your friends' supervisors are not supervising. In our company (also hoteliers), each transgression by any employee of the type above would require management attention. These matters are separate and distinct from the workers' comp restrictions (unless, of course, the doctor requires that permitting her to come in late or not at all as an accommodation).

This EE is trying to use the system to her advantage, but as any workers' comp adjuster or lawyer will tell you, an employee has no right to flaunt an employer's policies and procedures just because they are injured.

Long story short: Your friend should deal with this employee as she would any other employee who behaves the same way. If she would exercise her progressive discipline policies under these circumstances with other employees, she should do so with the injured employee.

And if the letter to the WC adjuster is from the employee's lawyer, your friend should turn it over to her counsel.

LindaS

Thanks for all the replies and I wanted to provide an update...

My friend is now aware of the deficiencies of the supervisor in this area and it is being addressed. She has documentation regarding every issue with the EE in question but she was informed by the co. attorney that they are going to offer the EE a settlement to "walk away". The EE's temporary total disability payments have stopped as W/C is going to deny the compensability of the "stress" but if the EE appeals, the attorney recommended the settlement payment.

Needless to say my friend is very upset as she sees this as personally because the letter addresses her specifically. Not to mention that the W/C case manager is not very strong.

Thanks for the assistance.

Parabeagle

In many cases it's better just to cut your losses and get out from under. A good attorney will tell you when it's in your best interest to do so, and your friend will undoubtedly feel much better when the problem "walks away."

But she is still going to have to deal with her Head Housekeeper, who it doesn't sound like does much when it comes to supervising her employees.