laid-off problem employee, work comp.
HRCarpenter
3 Posts
OK, HERE'S MY SITUATION......
WE HAVE AN EMPLOYEE (A BLOCKLAYER) WHO HAS BEEN A PROBLEM EMPLOYEE FOR A LONG TIME. HE IS A 'POT-STIRRER' IN THE FIELD AND LIKES TO WRITE DEGRADING GRAFFITI AROUND DIFFERENT JOBSITES. NO ONE HAS ACTUALLY EVER WITNESSED HIM DOING THIS, BUT WE KNOW IT IS HIM. ANYWAY HE HURT HIS BACK EARLIER LAST YEAR, AND HAS BEEN ON WORK COMP EVER SINCE. HE IS STILL UNDER LIGHT WORK RESTRICTIONS PER HIS DOCTOR, WHICH WE ACCOMODATED THROUGH THE FALL LAST YEAR UNTIL WE RAN OUT OF WORK FOR HIM, AT WHICH TIME HE WAS LAID OFF DUE TO LACK OF WORK. NOW, IT IS NO SECRET THAT NONE OF US WANT TO CALL HIM BACK AND WE HAVE OTHER VIABLE CANDIDATES APPLYING FOR HIS POSITION. BEING NEW TO THIS HR POSITION, THE FIRST THING I DID WAS GO THROUGH EMPLOYEE FILES, AND I FOUND VIRTUALLY NO DOCUMENTATION IN HIS FILE REGARDING DISCIPLINE. I KNOW FOR A FACT THAT HE HAS BEEN VERBALLY WARNED SEVERAL TIMES, BUT STILL NO DOCUMENTATION. IN CHECKING WITH THE WORK COMP CASE WORKER, APPARENTLY THEY HAVE NOT BEEN ABLE TO GET IN TOUCH WITH HIM FOR QUITE A WHILE. SO WE DO NOT KNOW HOW HE IS PHYSICALLY, OR HOW HIS RECOVERY IS GOING. ANY IDEAS ON HOW TO HANDLE AS WE ARE GOING TO NEED TO GET OUR MASONRY CREW BACK TO FULL STRENGTH IN A FEW WEEKS. HIS INJURY REQUIRED BACK SURGERY AND WE ARE UNSURE IF HE WILL EVER BE BACK TO FULL STRENGTH, AND IF NOT DO WE NEED TO KEEP TRYING TO FIND 'LIGHT DUTY' STUFF FOR HIM TO DO?
PLEASE HELP IF YOU CAN!
WE HAVE AN EMPLOYEE (A BLOCKLAYER) WHO HAS BEEN A PROBLEM EMPLOYEE FOR A LONG TIME. HE IS A 'POT-STIRRER' IN THE FIELD AND LIKES TO WRITE DEGRADING GRAFFITI AROUND DIFFERENT JOBSITES. NO ONE HAS ACTUALLY EVER WITNESSED HIM DOING THIS, BUT WE KNOW IT IS HIM. ANYWAY HE HURT HIS BACK EARLIER LAST YEAR, AND HAS BEEN ON WORK COMP EVER SINCE. HE IS STILL UNDER LIGHT WORK RESTRICTIONS PER HIS DOCTOR, WHICH WE ACCOMODATED THROUGH THE FALL LAST YEAR UNTIL WE RAN OUT OF WORK FOR HIM, AT WHICH TIME HE WAS LAID OFF DUE TO LACK OF WORK. NOW, IT IS NO SECRET THAT NONE OF US WANT TO CALL HIM BACK AND WE HAVE OTHER VIABLE CANDIDATES APPLYING FOR HIS POSITION. BEING NEW TO THIS HR POSITION, THE FIRST THING I DID WAS GO THROUGH EMPLOYEE FILES, AND I FOUND VIRTUALLY NO DOCUMENTATION IN HIS FILE REGARDING DISCIPLINE. I KNOW FOR A FACT THAT HE HAS BEEN VERBALLY WARNED SEVERAL TIMES, BUT STILL NO DOCUMENTATION. IN CHECKING WITH THE WORK COMP CASE WORKER, APPARENTLY THEY HAVE NOT BEEN ABLE TO GET IN TOUCH WITH HIM FOR QUITE A WHILE. SO WE DO NOT KNOW HOW HE IS PHYSICALLY, OR HOW HIS RECOVERY IS GOING. ANY IDEAS ON HOW TO HANDLE AS WE ARE GOING TO NEED TO GET OUR MASONRY CREW BACK TO FULL STRENGTH IN A FEW WEEKS. HIS INJURY REQUIRED BACK SURGERY AND WE ARE UNSURE IF HE WILL EVER BE BACK TO FULL STRENGTH, AND IF NOT DO WE NEED TO KEEP TRYING TO FIND 'LIGHT DUTY' STUFF FOR HIM TO DO?
PLEASE HELP IF YOU CAN!
Comments
Sounds like you inherited a doozy! There are a lot of challenges in this one situation, and I’m far from an expert on Worker’s Comp, but here are a few thoughts and suggestions.
For now you pretty much have to forget about the graffiti and other performance issues. It seems to me that the first order of business is to figure out what this guy’s medical status is. You say that your company hasn’t been able to get in touch with him. I would call the W/C carrier and see if they can tell you whether the ee has reached Maximum Medical Improvement (MMI). That means that he’s recovered as much as he’s going to and has been given some kind of final impairment rating. Even if he hasn’t reached MMI, you need to know exactly what his work-related physical capabilities and limitations are at this point, and your carrier should be able to give that you that assuming he’s still under the care of a W/C doctor. At least that’s how it works in my state.
If he’s reached MMI and has a permanent impairment, you need to determine whether he is disabled under the ADA. If he hasn’t reached MMI, you need to determine how long you can hold his job while waiting to see how fully he will eventually recover. As you learn more about this part of your job, you will find that it’s useful to have policies that (1) require ongoing contact with an ee who’s out on W/C; (2) provide guidance on how long you will offer someone modified duty while they’re recovering from a work-related injury; and (3) specify how long you wait and under what circumstances you will terminate someone who cannot return to work at full capacity. The key to avoiding Workers’ Comp retaliation claims is to have neutral absence control rules and other policies which base termination on the ee’s inability to perform the job functions and not on the fact that they filed W/C.
You also need to get in touch with him. I would send him two copies of the same letter to his last known address, one by regular first class mail and one “return receipt requested.” In the letter, tell him that he needs to contact you about his employment status and give him a deadline.
The performance issues should wait until if and when he can return to work. If he’s ever able to do so, you’ll basically have to start over since you’ve got no documentation.
I hope this helps; hopefully some of our other very knowledgeable colleagues will jump in here too. Keep us posted!
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James Sokolowski
HRhero.com