Worker's Compensation Return to Work Question

tiles52

I would like some feedback regarding what the employer's legal obligations are when an employee has been on worker's compensation for 8 months with no forseeable return to work date. We have a maintenance worker who is limited to the use of one arm; which makes it impossible for him to carry out the essential functions of his position, not to mention the fact that it is a safety concern for him to drive a vehicle with one arm (he has a manual transmission vehicle) for him to even come into the office to perform a restricted work activity. How long must we hold a position open for him. We hired a temporary worker (on our payroll) to help while the employee was off. However, this temporary work has been looking and has been offered another position thinking that the employee on worker's comp would be back by July.thinking that employee on worker's compensation leave would be back by July. It now appears that the employee on worker's compensation is not coming back to work anytime soon so we would like to hire the temporary worker as a regular full-time employee. Any ideas would be most appreciated.

Irie

Your answer depends on the state you are in. In Ohio you could not remove someone from your payroll if they were collecting temporary total disability. You had to wait until they reached maximum medical improvement and then you could take them off. Recently the law has changed however.

My recommendation is that you check with an attorney to make sure you are doing the right thing so that if you remove the person from your payroll it would not be construed as retaliation for filing a workers' comp. claim.

stilldazed

I agree that what you should or should not do may be state specific, outlined in your state's w/c legislation, and potentially other legislation that regulates your state's workers on medical leaves of absence.

I also think that your worker's present w/c state (permanent or temporary disability) will be a deciding factor. If the worker continues under medical care and has not reached MMI (either with or without an impairment rating), your claim is still active. FMLA should have been managed (and now expired). If the worker is still unable to return to work, you are likely in the area of ADA, and continuing to allow the worker to remain off work can be your ADA accomodation (even though the worker is currently unable to perform essential job functions).

I think that you mentioned two issues, and in reading between the lines, I'm wondering if you are really looking for answers to those responses:

1. What do you do with the vacancy after the temp employee moves out? You no longer have an FMLA obligation to this worker, and unless your company's policy guarantees that the worker will return to the same position, you should fill the position. You can keep working toward the new incumbent being temporary, but you really don't know at this point.

2. Do you return the worker to something else to bring him back into the workplace on a modified duty status? Your reference to the worker not being able to drive due to safety concerns has me a little confused. Does the worker drive a company auto? If not, the worker's commute is close but outside the scope of returning the worker to a set of job duties. Have you discussed options with the worker to return? Including transportation arrangements? If the worker is not driving a company auto, the employee is responsible for the commute in a w/c situation (at least it is that way in Florida).

I've had a couple of situations where an employee was able to come to work and do something, even if it was minimal, but was not comfortable driving. When we chose to push the point (under legal direction), I was successful in alleviating my company from lost wage compensation because we continued to insist that we had work available and the employees' refusal to drive constituted a refusal to accept available work. I think I'd look at that part a little closer if I were you and ensure that you have been as aggressive as you can be without going over the line.

Remember that your company continues to pay indemnity benefits as long as you don't offer and allow the employee to work, which increases the cost of the claim, has an impact on your experience mod, and ultimately costs your company more in w/c costs. Sometimes w/c claims have to be managed aggressively. It is commendable to be empathetic to an employee in an w/c situation, but you have a corporate loyalty as well to minimize costs as much as possible.

best wishes