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July 06, 2012
Legal experts answer workers' compensation questions

Our legal experts get lots of subscriber queries about employees’ rights to workers’ compensation and about particular employees who are on leave with covered injuries. As you’ll see, the puzzles encountered come in all shapes and sizes.

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Q: We run workers’ compensation concurrently with leave under the Family and Medical Leave Act (FMLA). If an employee cannot return to light duty, can we terminate him or her when FMLA is exhausted?

A: Most states’ workers’ compensation laws do not provide for job protection if an employee is unable to return to work. But employers should have a policy that states when disabled employees are to be terminated. Consider several factors in creating a policy, including the company’s size and financial situation. Many employers keep such workers on the payroll for a year.

And, while in most cases, employees on workers’ comp are not disabled for purposes of the Americans with Disabilities Act (ADA), you should consider whether your injured employee may need ADA protection. That would mean you and the worker would explore possible reasonable accommodations.

Q: An employee with attendance problems now claims to have a work-related injury. There were no witnesses to the alleged accident. What should we do?

A: It can be difficult for an employer to know if an employee’s medical condition is the result of a work-related injury. The wisest course of action is to report the injury to your workers’ compensation carrier, which will investigate and make a determination. In most states, discharging an employee for filing a workers’ compensation claim is illegal. Nor can you discharge him or her during a period of temporary disability, nor for participating or refusing to participate in a certified workplace medical plan.

You’ll also need to consider whether-- if leave is needed,--to designate it as qualifying for FMLA, and whether the person now has an ADA disability that would require accommodation to be explored. How these laws interact can be complex, and you may want to consult an employment attorney.

Q: An employee on workers’ comp refuses to follow the doctor’s recommendations and wants to try acupuncture. Can we fire her?

A: No, most state laws prohibit employers from discharging or discriminating against employees who have exercised their rights under workers’ comp. In your state, if your company doesn’t have a managed care program approved by the workers’ comp commission, your employees have the right to choose their own healthcare provider after initial treatment. This can be any healing arts practitioner licensed in the state, including chiropractors, naturopaths, and others. If that provider recommends acupuncture, the commission may approve it for coverage.

On the other hand, state law allows compensation rights to be suspended if the injured worker refuses to accept and fails to obtain reasonable medical and surgical aid. Finally, note that firing her might also violate ADA if she has a disability.

Q: An employee had a nonserious injury. Can we give him immediate compensation, say $100, rather than filing a workers’ comp claim?

A: That would not be a good idea. The worker needs to file a claim.

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