As most of you know, the wildfires in Northern California continue to burn at a rapid pace. All of us at Stanley M. Davis & Co. would like to extend our gratitude to all the tireless firefighters, police, volunteers and families that are working around the clock to try and save the beautiful land that we all love and treasure.
If you have any questions or concerns about your insurance coverage, please reach out to our office, we are standing by ready to help.
Please donate to the many funds set up to help the families and businesses that have lost so much.
When making the decision to return an injured employee to work, there are several significant legal issues that must be considered as a result of both state and federal law.
The first consideration is your state’s workers’ compensation laws. While a common objective of workers’ compensation laws is to facilitate the injured worker in returning to a productive job, not all states approach this goal in the same manner.
Your state’s approach probably falls into one of the following three categories:
- States that provide for a specific number of weeks of rehabilitation and a limited amount for training for the injured worker. After training is complete, the worker is considered rehabilitated. This training component also limits the employer’s liability to find another job for the claimant.
- States that are considered defined benefit states. A worker is paid for his temporary total disability. If disability reaches a predetermined percentage of body loss, however, the employer can issue a lump-sum payment and close the case, whether the worker can return to work or not. Rehabilitation is a minor part of this approach.
- States that use loss of earning power as qualification for benefits. Once a worker is injured, his workers’ compensation benefits will continue for life unless he is proven to have an earning power. In these states, the employer at the time of injury must offer a job to the injured employee if one is available within the employee’s physical restrictions. If this is not possible, the law requires that rehabilitation efforts begin.
The Americans with Disabilities Act (ADA) also presents certain legal considerations concerning the manner in which an injured employee is returned to work. The first consideration is regarding the collection and maintenance of the injured employee’s medical information.
The ADA requires employers to collect this information to determine how to accommodate an employee’s disability and whether the employee is capably of performing a specific job. However, the ADA also mandates that employers:
- Treat this information as a confidential medical record.
- Maintain this information on separate forms and keep the forms in separate files.
- Not use this information for any purpose that is inconsistent with the ADA.
There are also specific rules regarding the disclosure of such information. Supervisors and managers may be informed about necessary restrictions and accommodations arising from the disability. In addition, first aid and safety personnel can be informed if the employee’s condition may require emergency treatment.
Another key consideration under the ADA is whether or not the returning employee is eligible for a particular job. The law says that if an employee can perform the essential parts of a job, they are eligible, even if certain minor aspects of the job cannot be performed. Employers are required to make reasonable accommodations as necessary so that the employee can perform the job. This is what is commonly referred to as a “light-duty” assignment.
Decisions regarding necessary accommodations must be accomplished through a joint process involving the employer, employee, and the employee’s doctor. A company refusing to make reasonable accommodations is at risk for a lawsuit. A worker who refuses reasonable light-duty work risks having their benefits or employment terminated.