Is it workers compensation?
HRCGIL
7 Posts
I need some advice. I have an exempt employee who has been out about 3 days last week because of a shoulder pain. The pain is resulting from Tendonitis, and her doctor has given her restrictions to work only 4 hours due to the repetitive nature of her work. Would I process this is a Workers Comp case even if is something that she has had a history of? Also, she wants to work more than the 4 hours recommended by the doctor, should we allow her? . She does not have any PTO time available at this time, so if she works only 4 hours are we still required to pay her the full salary? I have never dealt with a case like this and I am truly not sure what to do.
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Comments
Some of the answers to your questions are going to be depended on what state you are in. One state I worked in an injury related to repetitive motion would be denied under workers comp laws. The state I am currently in would cover this under workers comp. I would get all the information (how, when, where, etc) from the employee and call this in to your workers comp carrier and let them make the determination. If she has a doctors note I would follow the doctors orders. If she wants to work more than 4 hours then she needs to go back to the doctor and try to get released for more duty time. How you pay her is going to be depended on what state you are in and whether this is covered as a workers comp injury or not. Remember also some states have a waiting period before someone gets paid. In MD that waiting period is 3 days. Unless the company has a policy to pay employees on WC from day one, then the employee does not get paid for the first 3 days they are out of work unless the claim is over a certain number of days (lost work time) and then they will go back and pay them for those first 3 days.
One word of advice for you is to have the person write down all the information relative to the claim. You can ask follow up questions about the claim but let her tell you as much as she can. If she can't remember how and when it happened make sure you make note of that. One state I worked in would deny a claim if the employee could not tell you exactly what happened, when it happened and what they were doing. The WC commission would look at these cases and say that since there was not a specifc incident then it could have happened outside of the job and therefore not the responsibility of the employer to handle.
I would say that it's a leap to go from "The employee must limit their time on the job because the affected area is used in a repeptitive fashion which could exacerbate the injury" to "The employee has a repetitive motion injury caused his or her job activities." Is the employee saying they became injured as a result of their job duties?
When you say "salary" are your referring to the salary basis of pay or is this person non-exempt from the minimum wage and overtime provisions of the Fair Labor Standards Act? If this person is exempt, then their FMLA status and workers' comp status will play a strong role in the decision to pay fully or partially on a day by day basis. If this person is non-exempt, then their workers' comp status will be the sole determinant of what you are required to do.
Here are a few more details-
We are located in Florida. We are a small company under 50 employees, therefore not covered by FMLA. This is a preexisting condition that she had. Apparently she had undergone surgery and various treatments prior to working here and she has only been working with us for 6 months. She has been very forthcoming with all the information and I would like to find a way to accomodate her for a period of time but ofcourse this will become very costly is we have to pay her the full salary for working only partial days as required by FLSA. Would I be able to reclassify her to non exempt and pay her on an hourly basis at this time due to her work restriction?
If you reclassify her as non-exempt, she can question whether or not she was exempt for the last 6 months and go to the DOL to pursue a claim for back overtime pay. I wouldn't do that.
Without FMLA, I think you will be stuck paying full days. Are you sure she's properly classified? What does she do that involves a lot of repetitive motion of the shoulder that is exempt? Also, the fact that she came to the job with a condition doesn't save you from the WC bill if that condition is worsened at work. Is there any light duty work she can do with the rest of her time? I'm intrigued by the physical nature of her work that has been classified as exempt.
I agree, reclassifying her may compicate things. She is a Marketing & Graphic Desig, working on the computer most/if not all of her time with various programs for websites, catalog layouts and other campaigns. We confirmed with our legal council if the level of her responsibilities and knowledge constituted a proffesional exemption and we were given the okay to proceed. We are a small company therefore she works independantly in many big projects. I reported it to WC and I'm waiting for their response, since as you said, the work may have worsen her case.I amwaiting for their response.
Thank you for your feedback.[:)]
Regardless of whether it is a WC claim or not, I would not allow her to work more hours than the doctor suggests.
Since she is not covered under FMLA, you do not have to hold her job for her. So I would do is sit down and negotiate with her. That is, offer her part time work at a reduced salary/hourly basis...it can be exempt as long as it hits the $455 limit regardless of hours. If she can't/won't accept it, then you would need to decide whether to terminate the relationship or not. You might also however need to be mindful of ADA depending on how large a problem this is.