Announcement

Collapse
No announcement yet.

how long? Colorado

Collapse
X
  • Filter
  • Time
  • Show
Clear All
new posts

  • how long? Colorado

    worker was injured on the job, almost a year ago, it is a small company. She still cannot do the work her previous position requires. We have made up junk for her to do for over a year. Do we have to keep her position indefinately or can we fire her and hire someone that can actually do the job without getting sued?

  • #2
    If you no longer have any work she can do, yes you can terminate her employment at this time.
    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

    Comment


    • #3
      Before you jump to terminate this employEE/IW, you should contact your WC carrier.

      It would be important to know the status of this EE... if TPD/Temp Partial Disabled, the IW would not have reached MMI/Max Medical Improvement.
      If that is the case, you would not be required to continue the light duty/modified work provided.
      IW would return to Dr, get status changed back to TTD/Temp Total Disability.

      There may also be ADA/EEOC issues you would be required to address...if this EE requests reasonable accommodation. If there is a qualifying 'disability' due to the injury.

      There are too many variables here based on your question to say "yes, terminate this employee". If you term out due to the injury as reason for not being able to perform the basic job function...you could be looking as discrimination/harrassment charges.

      You can also find info on CO WC Act here...http://www.colorado.gov/cs/Satellite.../1248095316915

      Comment


      • #4
        I guess there is a "possibility" of an ADA/EEOC issue but since employee can no longer do her regular job & they have been making up junk for her to do for over a year, it doesn't seem they would have to do any more before termination. It seems they went above & beyond already. Generally you can terminate, from the posts I have read, if they can't do their job & there isn't anything else for them to do. You don't have to give them employment forever. However, we don't have any more details than what OP told us.
        Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

        Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

        Comment


        • #5
          so if I read the statues correctly (& I'm not sure I am), if we think it's time she get her act in gear & get back to work, and she's just whining, we get a second opinion from a different MD that is quailified under the workman's comp insurance and if he says she is still not at full speed, we must continue to find busy work for her, if he says she is as good as she is going to get, she gets classified as partially disabled, we can terminate her and actually hire someone that can do the job and get on with life?

          (sorry-but I sort of figure if one can type all day, the "tendonitis" in one's thumb is probably pretty well resolved....)

          Comment


          • #6
            I agree with you Betty. I think however the IW status remains important here...

            She still cannot do the work her previous position requires. We have made up junk for her to do for over a year.
            If the IW has been declared MMI, and released to return to work, the ER would address those permanent restrictions, and determin if a job is available. The ER would not be able to demand the IW perform the pre injury job function then.

            If the IW is not MMI, but released with restrictions to modified work... the ER could then of course stop the modified job duties...IW would return to TTD status. Complete the healing process to reach stability/MMI.

            OP hasn't actually provided enough info here... IMO, ER should contact the WC carrier claims adjuster before termination of the EE/IW. Legal advice is necessary here...

            I was typing when you posted...
            I'd get in contact with the adjuster, find out the current status... you as the ER don't make medical determinations. Get the WC Dr to do a fit for duty evaluation.
            Tread lightly if this claim has not been resolved/settled yet.
            Last edited by CAIW; 03-08-2012, 11:36 AM.

            Comment


            • #7
              Thank you for the add'l. info, CAIW.
              Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

              Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

              Comment


              • #8
                we keep getting strung along-another 2months... etc. it has been a year, She will get release to go back to "light" duty, she complains that it hurts, goes back to the doc and then comes back with a note for new restrictions for another 2 months. We are a small clinic with only 12 employees, having one that can't do her job (and yes it is a physical job) for a year now is a hardship. She was out fully for 4 months, and now has been back 3/4 time on "light" (which for us is made up busy work because almost everyone does everything) duty. We need someone full time that can do the actual work required in the position, but can't afford to actually hire another person unless this person is gone.

                Comment


                • #9
                  If you only have 12 employees the ADA does not apply to begin with. But even if it did, the ADA never requires that you make up job for her.
                  The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                  Comment


                  • #10
                    Co. state discrimination laws including disability apply to employers with 2 or more employees. However, even so, I wouldn't see where you would have to keep making up "junk" for her to do.
                    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                    Comment


                    • #11
                      Agree - It doesn't matter where the discrimination laws start - insisting that an employee be able to perform their job duties is hardly discrimination under any discrimination laws.

                      CAIW knows more about workers comp than I do and so does ElleMd - I won't debate them on the subject. But nothing in either state or Federal discrimination laws is going to require that you create a job within her restrictions or make up work for her to do, just to keep her employed. That is NOT considered a reasonable accomodation.

                      If you legitimately have light work that she can do and that someone will have to do, fine. But making up busy work is absolutely beyond what is required.
                      The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                      Comment


                      • #12
                        NOT my area of expertise, but I have always heard that if you have an employee on WC, to run any proposed change in status actions past your WC carrier. I have worked for companies with 30+ person HR departments who followed this rule. I worked at one place where the Compensation and Benefits Manager told me she knew enough about WC to not trust her judgement in this area. She thought that she was likely right 95% of the time, but could not tell exactly which decisions fell under the 5% she was wrong.

                        Not all decisions can be safely made DIY.
                        "Reality is that which, when you stop believing in it, doesn't go away".
                        Philip K. **** (1928-1982)

                        Comment


                        • #13
                          I have had many w/c claims with light duty notes. Some linger on as yours has. My plan of action is always to put everything in writing so that you have proof if you are sued later on. I do this via emails to w/c and to the managers involved.

                          Be sure to document her prior job and what she is doing now. In your shoes my concern would be that someone ask me why we couldn't continue her in the position she is doing light duty. So you want clear reasoning why you don't want her to continue. Make sure you keep the tone of any correspondence professional.

                          CAIW mentioned that if the employee was not at MMI then you could stop the light duty and the employee would returned to being on leave and paid for lost time by your w/c. It may increase your w/c rates but it will allow your business to hire a temp worker.

                          If you chose this route, you could then hire a temp until the employee's claim is settled one way or another. By temp, I don't mean someone from an agency but you post a job ad and include that this is a temp position. Whoever you hire should be told that another employee is on leave for an undetermined amount of time. Once the employee returns to work the temp will be termed. I currently have 2 positions I have filled this way.

                          If the employee goes back out on leave, you should make clear to the employee when you expect to be contacted by the employee. I usually require them to bring in their most current doctor's note after each visit.

                          Good luck

                          Comment


                          • #14
                            A year out, you have bigger problems. Without any details about what the injury was, the job, how serious, or what the restrictions are if is very hard to advise you.

                            I do suggest speaking with your WC carrier. I'd say an IME/ FCE is definitely in order and I would be hesitant to act until I had the results. I would also push to get a nurse case manager on the claim.

                            While you can term, remember that a WC claim is forever. You may still be on the hook for TTD or Voc Rehab. That may be the case after the IME too but at least then you can get on with it and stop the claim from dragging out with no end in sight.
                            I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                            Comment

                            Working...
                            X