light duty release
System
5,885 Posts
We have an employee who injured back on the job about 6 weeks ago. Has been seen by 3 doctors who all have released ee to light duty. EE says he cannot work and refuses to perform the light duties assigned. If he does perform, it's for very brief periods. Several times ee leaves shift early. Had an instance of insubordination over the weekend and we could possibly terminate. Case manager says we can and should if we have our ducks in a row. Anyone else encountered this? My fear is a retaliation claim afterwards. I mean, we go by what the doctors are saying, but this ee has been consistent with his story, (back pain), and refuses to even do the light duty we ask. Can anyone offer their experiences? I've got a doctor who says the ee is fine and the ee who says he's in so much pain he can't get out of bed sometimes.
If we terminate, I know he'll come back and say we term'd because he couldn't perform his duties and we retaliated against him. Any advise?
If we terminate, I know he'll come back and say we term'd because he couldn't perform his duties and we retaliated against him. Any advise?
Comments
I then go through and explain clearly what is expected, and the consequences of not meeting the expectations. Persons are held to the attendance policy. If you have insubordination, I would pull the trigger, this makes it neat and clean.
My $0.02 worth.
DJ The Balloonman
I would suggest speaking with your legal counsel and if they feel you would be okay terminating the employee, I would go ahead and do it quickly before the employee finds a new physician who will provide them with the information the employee is requesting and thereby increasing your worker's comp. claim.
The attorney should look at the facts closely and the doctors notes.
I don't know how it works in your state, but in Texas if the employee refuses to do available work after a workplace injury, they go home (most employers would put on leave under the co. policy -- if none then terminate) and the employee will not get any wage replacement pay from worker's comp. They also cannot get unemployment. This legal fact will keep most employees at work.
If the employee says the work hurts him, the first step should be to send him back to his doctor to report it and to see if the doctor will change his restrictions. But forcing the employee to continue working when he says, "this hurts, I can't do it" is not a good idea. I am going to guess that the doctors notes are not that specific as to what the employee can and cannot do. You may need to send a task list to the doctor, etc.
There may also be some law in your state related to the employers duty to provide a safe working condition -- that the employer cannot terminate an employer for complaining that the work is causing him injury (some type of retaliation claim).
I am dealing with several lawsuits right now where the employees are claiming that the light duty (even though it was consistent with the doctors orders), caused them further injury and the employer, knowing that they were complaining about it being too hard, still forced them to do it. Now, I think the claims can be defended sucessfully under the law -- BUT the employer could have avoided the whole thing by really listening to the employee. He might be right -- the doctor may not understand how stressful the light duty is on him.
Good Luck!
First, I am assuming that you have sat down with the employee prior to assigning them light duty, and discussed the light duty work that you have when they first went on light duty, and they agreed to work light duty. If they have signed off on something this would help your case. Also let them know that the doctor is the one who has released the EE to return to work for light duty.
I am also assuming that you have engaged in the interactive process throughout this whole case with the employee, basically getting their side of the story, and then reiterating the importance to being at work.
If all of that has been done, and very, very well documented, I would suggest that you put together a certified letter explaining the whole situation. For example, receiving a report from the dr. that you were able to report to work on light duty on this date, your supervisor has assigned a light duty program for you based on the restrictions the dr. has given you. documentation has noted that you have been experiencing excessive absenteeism and the following dates have been documented as unexcused (list the dates). Then mention the date you discussed how you met with the EE and discussed the importance of being at work.
Finally conclude that it is vital to your continued employment that you do not experience additional absenteeism.
That in a nutshell is what we did, and so far it has seemed to work out well. I would also consult an attorney to make sure that the wording of the letter is appropriate.
Hope this helps
Couple of points to think about. I hate the phrase "light duty", and personally never use it because it gives the employee the impression that they cannont do real or hard work. I prefer "restricted duty", and while some may say it makes no difference, it does. I also explain to injured employees that with our restricted duty program, once we receive the work restrictions from the doctor we will evaluate what work we have that they can do. It may include their job with modifications, or another job we have available.
What I have found is that good employees do not like restricted duty because they feel like they are not pulling their weight and want off of it as soon as possible. Bad employees do not like restricted duty because it does not let them sit at home and collect a check.
If you have issues like we have here, you should see about having the physician visiting the worksite so they have an understanding of this individual's job as well as others. Most occupational doctors will do this. I required of clinics in the past.
My final thought is when you have a problem employee like this we must never forget that, well they could be telling the truth. Fact is nothing says they cannot work in pain, but we never want to further injury them. One final way to determine if they are malingering is to have them go through a FCE or Functional Capability Exam. The nice thing about this test, it will identify those who are playing games.
My $0.02 worth today!
DJ The Balloonman