Probably one of the toughest calls that we receive is from a frustrated client/manager who has an employee either out on worker’s comp for a longer period of time that the employer would like, or one that is back, and is on a modified duty restriction with either the same rate of pay or is not cooperating with the restriction.
Look, we feel your pain but frustrations lead to bad decisions that ultimately could cost you! When an employee has filed a claim for Workers Comp that automatically places them in a protected group and any adverse action against them could later be viewed as retaliation. But there are measures that you can take to protect yourself. They are not completely untouchable. Let’s look at some of the more common scenarios.
The employee that is out for longer than a year:
Employers become really frustrated with this one because they do not know how long they can keep this individual “on the books.” There have been cases where employers have finally terminated an employee that had been out longer than a year and had successfully defended a claim of retaliation. Our advice is to go ahead and fill the position but do not terminate the individual. The logic is simple. If the employee is not costing you anything to be out, why take any action that possibly could subject you to liability. When they eventually return (and the longer they are out before they return is the better for you) simply inform them that you were not able to hold their job. Another important factor is that you have also treated other employees who had been out on other non-work related disabilities the same. Meaning of course that they had surpassed all state and federal leave time requirements and did not return on a timely basis. You have to be consistent.
The employee on modified duty:
There are several issues here. The first is whether or not you have to put them on modified duty. The short answer is “no” if you do not have modified duty available. You should try, however, if the person is really not qualified for anything else then you do not have to create a position or opportunity. Your comp carrier will probably always try to have you put the individual on modified duty.
The second issue is whether you have to pay the same compensation if they are placed on modified duty. The short answer is “no”, but you should not reduce them by more than 10%. Yeah, I know, “big deal” but it is better than nothing.
The final sticky point is what happens when the employee is not complying with the restrictons. They can be written up like any other employee who is not in compliance with policy. Should you terminate them? Probably not without several written warnings but before making a drastic move like termination, I would suggest after a sufficient amount of warnings, you inform them that you can no longer provide the modified duty which was initially designed to assist them with their recuperation. If they are not going to cooperate then they have to be placed off work so they they can properly recover.
The final point is for you not to get frustrated if the employee continues to miss work due to calling in sick. They have to follow the rules just like everyone else and can be written up as long as you have been consistent with others who have violated the same policy.
Remember: Do not ever terminate an employee under the above circumstances without first calling us or for non-clients, your consultant or attorney who advises you on such matters. Mistakes here can be very costly.