Please note, we are not employment/labor law specialists, nor do I play one on tv -- this post should not be construed or used as legal advice on how to handle employee terminations, it is simply an attempt to make employers aware of the impact a termination may have on their workers' compensation program. Now we've got that covered...
Don't terminate an injured worker simply because you [think you] can't accommodate their restrictions
Often times an injured worker is given challenging restrictions that an employer believes they cannot accommodate. The employer sees no possible way of bringing the injured worker back to work, but somehow temporary restrictions result in a long-term action. The injured worker served a key role in their operations, and they need to replace him.
I see two problems with this line of thinking. Problem #1: The employer has assumed that the injured worker can do nothing. That is contradicted by their release to return to work -- the doctor is stating that they can do something, albeit not their pre-injury job. I implore employers to take 45 minutes (not even an hour) to sit in a room and come up with 5 examples of modified duty work the injured employee could perform. Act as if your livelihood depended on it, because in some cases it does.
Example: The employer values the employee's contributions, but needs someone to help pick up the slack. So, while you have Joe working to make up for Maria's work, can't you have Maria help out with some of Joe's duties? Or, perhaps you need to bring in a temporary worker -- there is a learning curve which equates to lost production, increased hours, increased error rates or declining piece rates -- use Maria's skills and knowledge to help train her temporary replacement.
Problem #2: Eventually (barring permanent restrictions) the injured worker will be able to return to their pre-injury job. But, they've been terminated and replaced despite their value to the organization. Consider what that says to other employees -- if I get injured, I'm not going to have a job. (Trust me this isn't a good way to build safety culture). This can lead to people working with minor injuries without treatment, causing more physical harm, so that they don't have to report the injury. Remember that shoulder strain/sprain that turned into a rotator cuff tear requiring surgery that may have been resolved by rest and some physical therapy?
Consider the impact on the claim costs -- job availability
In some states, Pennsylvania and Tennessee come to mind, whether or not an injured employee has a job to return to can significantly impact the amount or duration of benefits they are entitled to. For obvious reasons, this shouldn't be the only reason an employer agrees to bring an injured worker back to work (see above).
Example: In TN, an employee may be entitled to a permanency rating which takes into consideration the level of permanent, partial impairment and the body part involved (schedule of injuries) among other things. Once the base rating is calculated, a multiplier is added to the equation. If the injured worker has a job to return to, they are entitled to a maximum of 1.5 times their base rating. If they do not have a job to return to, they could be awarded up to 6 times their base rating. Suppose a rating equates to 10 weeks. With a job to return to, the award would be capped at 15 weeks (1.5 x 10). Without a job to return to, they could go from getting 15 weeks (1.5 x base rating) to a maximum of 60 weeks (6 x 10). That's 1 year and 2 months for those of you keeping score at home.
But what about blatant insubordination or other violations of policy?
Consult your labor attorney or employment law specialist. Then consult your claim representative for an explanation of the impact it can have on the WC claim. From a WC standpoint, if an employer terminates an injured worker for cause, and it is well-documented, then the impact it would have on the claim may be offset by the level of documentation and rationale that is used when terminating an employee. In simpler terms, would a judge or WC commissioner find that the employer acted reasonably or in retaliation? I'm reminded of what my parents told me as a teenager -- would you make the same choice if your mother was standing behind you? No? Then it’s probably not the right choice. Consider the same question – how would it look in the eyes of a WC judge?
We’re not telling you how to handle terminations or that you have to do what we say, but just consider running it by your counsel and your claim representative so that you are making a well-informed decision. Knowledge is power.
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