Employer needs help - small business

[ambloupal]

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

We are a very small business (4 total employees) I have an employee who injured a hand in December. No breaks, no surgeries, just bruising.

This person is still out on workers comp. Was released with minimal restrictions in March. Still not coming to work, states, physical therapy needs 3 days per week.

How long must I keep the job available, am getting no communication and no doctors reports.

I don't want to get sued, have done everything I am supposed to do, but don't want this person to come back to work or to sue me for giving the job away to someone else.

Are there laws to protect the business too? or just the employees?

Thanks

 

[cbg]

Let me just confirm; there is medical documentation that he is medically cleared to return to work and resume his duties? There are some restrictions but they are minimal and you are able to work around/within them?

Please confirm that this is so before I comment further, or correct me if I am reading it incorrectly.

 

[ambloupal]

yes, with some minimal restrictions that do not restrict job duties only lifting which there are others who can do that for them.

I have asked several times over the last 5 months if she plans to return to work, never received a direct answer. The last time I communicated with her, she said she can't come because she has physical therapy 3 days a week for 3 hours each, but she has not provided any documentation that this is a fact.

thanks

 

[eerelations]

Physio appointments don't last three hours. In addition, there's only so much physio can do for any kind of injury/disability - after a couple of months if it hasn't done much to "cure" a disability or injury, it becomes a waste of time. So this sounds kinda bogus to me.

I reco you send her a letter (by certified mail) stating that now she's able to return to work, you expect her to do so on X date (not tomorrow, give her a little time, like a few days to a week, to get her you-know-what together to start working again), at X time. Also state clearly that you will work within the restrictions provided by her doctor. Finally, conclude the letter with a note on the physiotherapy - state that you're willing to work around her appointment requirements but that you require documentation from her doctor and physiotherapist that clearly shows how much time (and when) per week she needs for physiotherapy.

If she shows up to work, great. If she doesn't, or if she does but doesn't bring you the documentation, or she calls you and gives you some more bogus-sounding reasons why she can't, then post here again and we'll walk you through some next steps.

 

[ambloupal]

Ty

Thank you for the advice. I will let you know what happens.

 

[cbg]

She's playing you.

eerelations was nicer than I would have been. As far as I'm concerned, you should tell her, in writing, certified, that she needs to get her ass into work on Monday or she doesn't have a job.

 

[eerelations]

She's playing you.

eerelations was nicer than I would have been. As far as I'm concerned, you should tell her, in writing, certified, that she needs to get her ass into work on Monday or she doesn't have a job.

I believe she's playing you too. I still reco the letter be "nice" - just in case some judge-like person reads it in the future. "Nice" shows you were sincerely trying to accommodate her (and therefore not at fault for whatever she accuses you of).

But I agree with cbg, if you tell us later that she either didn't show up for work when you told her to, or showed up without proper physio documentation (yet still asking for time off for physio appointments), I will probably tell you to just fire her.

 

[cbg]

Just to reassure the OP, while I acknowledge that anything can happen, you are far too small to be required to provide any protected medical leave OR any accommodations under Federal or state law. If you had been large enough to be required to provide protected medical leave she has already been out almost twice the maximum time required (possibly more than twice depending on how early in December she went out.) Even if you were large enough to be required to provide accommodations, there is no possible way it would be considered reasonable (and reasonable accommodation is all that is required) to allow her to be out full time when two days a week she has no therapy at all and three days a week she claims to have (only) three hours a day. Texas workers comp laws are not the strongest in the US and there is nothing in them that requires you to permit her to be off full time for 9 hours a week of therapy. (Nine hours a week for bruising? Who does she think she's kidding?) I promise you that in the highly unlikely event that she ever got this into a court, you would win, and it's far, far more likely that she'll never get any lawyer or regulatory agency to give her the time of day.

Be polite, but be firm. She's had more than enough time to get her act together. If you want to be nice about it you might want to tell her she'll be allowed time off to go to her therapy BUT she will have to provide written documentation from her doctor and/or physical therapist confirming the number and length of appointments. There is such a thing as workers comp fraud and frankly, if she doesn't clean up her act real soon she's going to be on the wrong side of the line for it. If she isn't already.

 

[commentator]

Wait a minute. You say she is "still out on Worker's Comp." Does this mean she is still getting paid 2/3rds of her salary through worker's comp? What does your worker's comp carrier say about this? She must be giving someone some type of medical documentation to keep being paid like this, if she is. If not, she's released, and you can tell her to either come back to work or she is terminated. A bruised hand? Wow.

 

[ambloupal]

She's playing you.

eerelations was nicer than I would have been. As far as I'm concerned, you should tell her, in writing, certified, that she needs to get her ass into work on Monday or she doesn't have a job.

yes, I don't want to be nice any more, but I need to protect myself from any lawsuit which where I think she is trying to go.

 

[ambloupal]

Wait a minute. You say she is "still out on Worker's Comp." Does this mean she is still getting paid 2/3rds of her salary through worker's comp? What does your worker's comp carrier say about this? She must be giving someone some type of medical documentation to keep being paid like this, if she is. If not, she's released, and you can tell her to either come back to work or she is terminated. A bruised hand? Wow.

yes, I know, I have contacted my insurance and they are not getting back to me. I don't know if they are paying her or not, I assume so. The last time I talked to them they said I had to keep her job available for her until she was completely released. When will that be?????? Who knows!

 

[ambloupal]

Here is what I wrote in the letter. Thank you all for your advice. I will update after the 30th

This letter is a formal request for you to return to your position here at XXXX. We expect that you will report to work for your usual shift on Tuesday, May 30, 2017.
We will work within whatever restrictions your doctor has imposed as well as any physical therapy appointments you have.
You must bring written documentation of all reports from your doctor. The last we received was dated March 14, 2017. We have received nothing in writing since that date. You must also bring written documentation of the physical therapy and the appointment schedule.
If you do not bring documentation or if you do not report to work as requested, your position here will be forfeited.

 

[NIV]

Here is what I wrote in the letter. Thank you all for your advice. I will update after the 30th

This letter is a formal request for you to return to your position here at XXXX. We expect that you will report to work for your usual shift on Tuesday, May 30, 2017.
We will work within whatever restrictions your doctor has imposed as well as any physical therapy appointments you have.
You must bring written documentation of all reports from your doctor. The last we received was dated March 14, 2017. We have received nothing in writing since that date. You must also bring written documentation of the physical therapy and the appointment schedule.
If you do not bring documentation or if you do not report to work as requested, your position here will be forfeited.

I have no real expertise on the issue, but might change the last sentence (and grammar) to use "abandoned" rather than "forfeited".

http://www.twc.state.tx.us/news/efte/types_of_work_separations.html

 

[eerelations]

Agree. I reco the last sentence should read "If you do not bring the requested documentation and/or if you do not report to work as requested, we will consider you to have abandoned your job here at XXXX."

 

[cbg]

I'll join in the recommendation.