worker's compensation

[shrimotel6]

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

One of my employee got injured while on job. It has been 6 months now and still not back to work. During last six months, (through worker's comp insurance) this employee was getting treated at doctor's office. I am sure that an employee is OK now. But, employee is still persuing the treatment with doctor just to keep getting the worker's comp pay and stay home.
What can be done to replace this employee and fill up the same position with somebody else so that the business does not hurt.

 

[Zigner]

There is nothing saying you can't hire an employee to do the work of the injured employee.

You really ought to speak with an employment attorney before moving any further down the path of trying to terminate this employee.

 

[canhelp]

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

One of my employee got injured while on job. It has been 6 months now and still not back to work. During last six months, (through worker's comp insurance) this employee was getting treated at doctor's office. I am sure that an employee is OK now. But, employee is still persuing the treatment with doctor just to keep getting the worker's comp pay and stay home.
What can be done to replace this employee and fill up the same position with somebody else so that the business does not hurt.

if you are subject to FMLA the employee has job protection for 12 weeks.
under ADA you are required to discuss reasonable accommodation for the employees restrictions.
get information about your obligations under FMLA & ADA.

contact your work comp carrier and discuss modified or alternate work assignments. most states and carriers have early return to work programs to reduce the effects of prolonged temporary total disability. if necessary, contact the doctor about modified work.
california also has temporary partial disability benefits which will allow the carrier to make partial disability payments if the modified work results in wage reduction.

 

[cbg]

Not everything that qualifies for FMLA qualifies for the ADA, and vice versa. Nor does the ADA require that the employer hold the employee's job indefinitely. That is NOT considered a reasonable accomodation. Even if the condition does qualify, which has not been established.

 

[Zigner]

California also is funky in that, if the employee goes out for a disability-related reason, they cannot be discriminated against based on that disability. So, if the employer terminates this employee because they missed work due to an injury, they can be sued over it.

 

[cbg]

Even CA does not require the employer to hold a job forever.

 

[Zigner]

Even CA does not require the employer to hold a job forever.

Nope - but a reasonable accommodation for a WC injury could very well be allowing the employee to return after the injury.

And this wasn't even touching on the 132a claim that could arise in this matter.

 

[cbg]

That is, of course, assuming that the condition in question meets the definition of a disabilty. Federal OR state. Which we do not know.

 

[Zigner]

That is, of course, assuming that the condition in question meets the definition of a disabilty. Federal OR state. Which we do not know.

For the purposes of what I posted, it does.

 

[cbg]

I won't debate the definition of a disabilty with you but as I understand the OP, it's not as much a question of allowing the employee to return, as it is getting the employee to return. I don't get the sense that the OP is determined to fire him out of hand if the employee returned to work. It's more that the employee is NOT returning to work and the poster needs someone in place doing the job.

So, are you telling me that the poster has to allow the employee to stay out as long as he wants with a guaranteed job when he returns no matter how long he stays out? Because I don't believe that to be true, even in CA.

 

[Zigner]

I won't debate the definition of a disabilty with you but as I understand the OP, it's not as much a question of allowing the employee to return, as it is getting the employee to return. I don't get the sense that the OP is determined to fire him out of hand if the employee returned to work. It's more that the employee is NOT returning to work and the poster needs someone in place doing the job.

So, are you telling me that the poster has to allow the employee to stay out as long as he wants with a guaranteed job when he returns no matter how long he stays out? Because I don't believe that to be true, even in CA.

Nope, I'm not saying that. But if the employee shows that he is under the continued care of a doctor for a work-related injury, and the OP fires him for not being there, then the OP will get slapped with legal action. I've seen it happen under VERY similar circumstances, except in that case, the employee was out over a year.

 

[Willlyjo]

Nope, I'm not saying that. But if the employee shows that he is under the continued care of a doctor for a work-related injury, and the OP fires him for not being there, then the OP will get slapped with legal action. I've seen it happen under VERY similar circumstances, except in that case, the employee was out over a year.

Wrong, Zigner...The OP will not get slapped with any legal action other than the following:

If an injured employee has been out of work for 6 months as the employer says, then the employer don't have to keep the job available for such injured worker (In California).

The employer will, however, be required to provide a voucher in a calculated amount with which the injured worker can re-train for another career. There will also be a certain percentage added onto any Permanent Disability Award the injured worker receives via Compromise and Release, Judges Findings and Award or Stipulation as a result of the employer terminating the injured worker.

So yes, the OP is free to terminate the injured worker without the threat of legal action he may have faced if the termination would have breached any FMLA time frames.