Temporary disability and guarantee of employment?

[kprjo]

What is the name of your state?What is the name of your state? California

I have an employee who was hired without any known injuries last January. Recently, this employee filed for a non-work related back injury and told us that they had to go through tests to find out what was wrong. After a few tests, they informed us that they had a debilitating disease called degenerative disk disease where the disks disintegrate in the back. However, they still were seeking answers through more tests.
During this time, I hired two part time employees because we have a small business and a small staff and somehow had to get the work done without the injured party. Also, the disease seemed to indicate a permanent disability. I complete all paperwork and office tasks as the manager, and we had two part time employees and one other full time employee, other than the injured party prior to hiring the new staff members.
After another series of medical tests, they determined that the disease was not present and that in the past the person's back must have become broken in the past. They received a doctor's release to come back to work, although this person still hurts and has had no "recovery" from this "temporary disability".
Our business has about 90% of its overall tasks as physically laborous tasks, including carrying/lifting, cleaning of large items, bending, reaching and standing...all on cement floors. General staff has little if any involvement in the office aspect, that is specifically my job description and capabilities.
Out of necessity we have hired these other staff members.
My questions are:
(1) Is this employee guaranteed their job as is after they have received a doctor's release? Does the small business aspect change this at all?
(2) Are we legally required to find jobs that this person can do, even if there are none available in this type of operation?
(3) If we were to bring this person back, will we be endangering ourselves with a workman's comp situation further down the road? Even if they are willing to maintain their old job description?

Thank you. I hope someone out there can answer these questions.

 

[cbg]

1) Is this employee guaranteed their job as is after they have received a doctor's release? Does the small business aspect change this at all?

There are two separate answers to this question; one regarding FMLA and one regarding the ADA. He has no job protection under FMLA - while you have not identified HOW small an employer you are, he has not worked for you long enough to qualify under FMLA. (If you have less than 50 employees, then FMLA does not apply regardless of how long he has worked for you.) Since FMLA does not apply, if he has exhausted the amount of leave you would provide to any other similarly situated employee, you have no obligation to return him to work.

However, it is possible that he may qualify under the ADA, and CA has a more liberal definition than Federal law. If that proves to be the case, you will need to investigate (a) whether or not there is a reasonable accomodation you can implement to assist him in performing the essential functions of the position or (b) whether there is an open position within his restrictions that he can perform. This does NOT mean you are required to continue to employ him, but you do need to investigate all possibilities.


(2) Are we legally required to find jobs that this person can do, even if there are none available in this type of operation?

No. Even if the ADA applies, which is not definite, they do not require that you create a job for him if no job within his restriction is available.


(3) If we were to bring this person back, will we be endangering ourselves with a workman's comp situation further down the road? Even if they are willing to maintain their old job description?

It's possible; no one can say for sure. But it would be illegal to use that possibility in determining whether or not to continue his employment.

You would certainly be able to use this situation as a defense against a future workers comp claim; whether you would prevail or not is too situation specific to say.