Letting an employee with bad back work? - Attn. CBG

[wavedude]

What is the name of your state (only U.S. law)? MA

I am small (7 employee) business owner in an automotive repair field. One of my technicians, a long-time (9 years with us) employee, just missed 3 weeks of work because of severe back pain - the onset of pain happened at his home so no WC claim was filed. From what he told me, he is not being treated by an MD but rather by a massage therapist. From what the massage therapist told my tech, he has a protruded disc. Now after 3 weeks of massage and exercises he is a lot better but still having some pain.

My tech had used up all his PTO time and needs money, so he wants to come back to work. The massage therapist told him he should not be doing any bending, twisting or lifting more than 15lbs. Obviously he cannot do his job here with those restrictions, but he is begging me to let him do his regular duties, which I am not at all comfortable with.

The point is - I do not want him to reinjure himself, this time at work, and then file a WC claim. So what are my options, what shall I do?
I heard that with those conditions, the likelihood of a repeat injury is very high.

So how do I protect him AND protect myself? Shall I not let him come to work until a real MD will give him a release that he is fully healed and could work his regular duties? Will WC still be responsible for his reinjury if he had a preexisting condition? I spoke to a caseworker at my WC carrier, but she does not seem too bright.

Thank you - any advice would be appreciated

WD

 

[HomeGuru]

What is the name of your state (only U.S. law)? MA

I am small (7 employee) business owner in an automotive repair field. One of my technicians, a long-time (9 years with us) employee, just missed 3 weeks of work because of severe back pain - the onset of pain happened at his home so no WC claim was filed. From what he told me, he is not being treated by an MD but rather by a massage therapist. From what the massage therapist told my tech, he has a protruded disc. Now after 3 weeks of massage and exercises he is a lot better but still having some pain.

My tech had used up all his PTO time and needs money, so he wants to come back to work. The massage therapist told him he should not be doing any bending, twisting or lifting more than 15lbs. Obviously he cannot do his job here with those restrictions, but he is begging me to let him do his regular duties, which I am not at all comfortable with.

The point is - I do not want him to reinjure himself, this time at work, and then file a WC claim. So what are my options, what shall I do?
I heard that with those conditions, the likelihood of a repeat injury is very high.

So how do I protect him AND protect myself? Shall I not let him come to work until a real MD will give him a release that he is fully healed and could work his regular duties? Will WC still be responsible for his reinjury if he had a preexisting condition? I spoke to a caseworker at my WC carrier, but she does not seem too bright.

Thank you - any advice would be appreciated

WD

**A: yes by all means he needs to get work clearance from an MD. You should have required a MD note after one week of him being out. It is possible that WC will be involved if employee is re-injured.

 

[cbg]

Absolutely you want to get a medical release. I don't handle workers comp claims any more and, oddly enough, I know the rules for DC better than for MA, but that's one thing you definitely want to do.

 

[wavedude]

Well, thank you both CBG and HomeGuru - just called my tech and told him know he has to get a release from an MD. I am going to insist that the release would include wording that the MD is aware of my tech's back condition and missed 3 weeks of work, as well as that the MD is aware that a tech's job involves repeated bending, twisting and lifting of heavy objects.

Beyond that - what else should be in the release?

Also, both of you mentioned that the release is just the minimum I should do - what else beyond the release would you recommend?

 

[cbg]

I'd wait to hear from his doctor before making any other final decisions, but I'd also be thinking in terms of light duty.

 

[HomeGuru]

Light duty: put up the Snap On Tool calendar, pour coffee, make lunch, clean hand tools....

 

[cbg]

HG has a point. Light duty jobs don't have to be related to his usual job. I have a friend who sets light duty workers to counting paper clips (though she reserves that particular duty for employees she has reason to think are malingerers). I wouldn't finalize anything until you hear from his doctor, but that gets him back to work (good for him) and prevents an immediate re-injury (good for you).

 

[Mass_Shyster]

There are two ways to look at this.

1) Fire him so he does not become a liability. The chances he will injure his back at work are pretty good, and you have no medical records to show that he actually injured his back previously. The best you can do is obtain records from a massage therapist. If he can convince the unemployment board that he was able to work and you did not fire him for cause, he may be able to collect.

2) Let him come back to work, injure himself, and go out on WC. Your rates will go up, but not by as much as he will collect.

Everything else is somewhere in between.

 

[ecmst12]

If you don't have light duty jobs available, you can tell him that he can't come back until he's released to FULL duty - including bending, twisting, and lifting. I can imagine with a business this size, you're not much interested in paying someone to count paperclips and not actually add anything to the business.

 

[wavedude]

Thanks again to those who took their time to respond.

I do not want to fire him, because he is a good tech and those a very hard to replace, even in this labor market. On the other hand, I do not have any light-duty position for him where he would meaningfully contribute to the business, and the business of our size cannot afford to pay his salary without him contributing. I also cannot afford for him to draw on WC for months and months (which is a distinct possibility if he reinjures himself) as for the business of our size it will completely blow up the rate.

So it appears that the only viable option is not letting him come back to work unless an MD will provide an informed release for FULL duty, and meanwhile look for potential replacement in case it will take him a long time to heal and we cannot get by without this position being filled.

He is very hard up for $$$$, so my feeling is that instead of waiting for a full release he might just get another job where they would not not know about his back problem. If that would the case - let him blow up their WC rate instead of ours.

 

[cbg]

FYI, MA has a rather unique law that you will want to keep in mind.

If you cannot support any medical restrictions after a workers comp claim (this law is limited to workers comp situations), MA is fine with your letting him go. But, if at some point in future you have a position open up for which he is qualified and which he can do within his restrictions, you are legally obligated to give him first crack at it. You do not need to create a job within his restrictions; nor do you need to bump someone else out of their position for him to fill; nor do you have to put him into a position for which he is not qualified. But if a position opens up which you would need to fill anyway AND he is qualified for it AND he can do it within any medical restrictions he may still have at the time, you are obligated by state law to give him first refusal.

 

[swalsh411]

I don't have anything else to contribute other than what has been said already but I just wanted to add that the OP has clearly given this a lot of thought and wants to do what is right and legal, both in terms of his business and his employee. That is refreshing to see because a lot of times somebody will post about an issue like this with their mind already made up and just hoping for legal support for what they are going to do anyway. (and then get upset when nobody can provide that).

 

[wavedude]

Thank you CBG for letting me know about this MA law - I was not aware of it. All I could say that this law sounds eminently reasonable to me.