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I've Fallen and I Won't Get Up!

Columnist: Brandon R. Blevans
February, 2007 Issue
Columnist

Brandon R. Blevans
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We’ve all suffered from a nagging injury that just won’t go away. It could be a bum knee or a backache. Maybe it’s a headache that doesn’t quit for days on end. Regardless of source, those types of aches and pains exist and, when we suffer from them, they interfere with our lives—personally, professionally and otherwise. So what’s the answer? For most of us, it’s “deal with it.” Unfortunately for California businesses, many employees decide it’s “file a workers’ comp claim and stay home forever.”

That’s right, I said it. File a claim. That grinding noise you just heard is the collective jaw tightening of all four readers of this column. The steam boiling out of their ears is accompanied by the thought, “Doesn’t this idiot know how much that will cost my business?”1 I’m not the first to recognize the radical concept of perpetual vacation under the auspices of an occupational injury. As many employers know, milking the workers’ comp system is no novel game. The questions are how an employer can lawfully deal with the problem of the perpetually “injured” employee.

First things first. When an employee tells you she’s hurt herself at work, there’s only one course of action: Give her a comp form. That’s right. Why? Because it’s the law. If you don’t, bad things will happen to you. I kid you not. Give her the form and encourage her to fill it out. Heck, if someone simply sneezes at work, give them a comp form. Dole them out like candy. Once they’ve been filled out, send them to the insurer. That’s why you have insurance.

Since we have that issue resolved, let’s move on to the advanced course. Your employee has been off work for what seems like a decade.2 Your angst is building. Every pay period, you see her name on the payroll journal, and it eats at the core of your being. Every time you receive a bill for her health insurance, the veins bulge out of your neck like the King of Queens in Paris Hilton’s blue jeans.3

You’re chomping at the bit to terminate her employment and let her mooch off some other unsuspecting employer. As you mull it over and over and over, the proverbial lightbulb shines brilliantly in your head, and you think, “She wasn’t a particularly good employee to begin with. I’ll just eliminate her position.”

As far as lightbulbs and electricity go, this idea is akin to a rolling blackout. Terminating an employee who’s out due to an occupational injury (read: “workers’ comp leave”) leaves plaintiffs’ attorneys salaciously drooling at the thought of increased benefits and lawsuits. In other words, you’re asking for problems.

The first is known as a “132a claim.” This is a claim for increased benefits of up to $10,000, back pay and $250 of attorney’s fees. While not a large sum (forgetting the back pay portion for the moment), it’s also litigated in front of the Workers’ Compensation Appeals Board. As far as level playing fields go, some claim this is only slightly better than the Salem witch trials.

Unless you can establish it was a business necessity to terminate the individual, it’s hard to avoid liability. And “business necessity” isn’t an easy standard for employers to meet.

The second, and greater, source of trouble is from a lawsuit alleging “disability discrimination” under state anti-discrimination statutes. Unlike a 132a claim, such a claim isn’t heard in the workers’ compensation forum. It also has much greater potential liabilities. For example, in addition to potential back pay, your now ex-employee can seek damages for emotional distress, punitive damages and attorney’s fees (without any cap on that amount).

As that lightbulb in your head fades away, you ask, “What can I do with this headache of an employee?” While the current answer isn’t fully gratifying, employers are not without options:

Hire a temp/fill-in to handle the job. However, you need to inform the new hire that the position may be temporary if the injured worker returns and no additional position has been created or opened up.

Explore terminating the employee’s health benefits. Under most group plans that are sponsored or maintained by the employer, a federal law known as ERISA may preempt any claim of discrimination based on terminating employee health benefits. However, for an employer to do this, the benefits termination must be required by the terms of the group health plan (for example, an employee may lose eligibility if he or she is absent from work beyond a particular time period).

Before exercising this option, you should consult with legal counsel to determine propriety in light of other laws regulating benefits during a leave (such as FMLA). If it’s an available option, however, it can place significant financial pressure on an employee to seek other employment or come back to work.

Communicate with the employee. Contact her to find out how she’s doing. Ask about her return status and for frequent updates.

Await a determination that the employee is “permanent and stationary,” and engage in the “interactive process.” Huh? State and federal law require that most employers engage in an interactive dialog with an employee to determine if a reasonable accommodation exists that will let the employee return to perform the “essential functions” of the job. A failure to do so, even if no accommodation exists, can result in employer liability. If no “reasonable” accommodation exists, or the accommodation would cause an “undue hardship,” an employer would be able to terminate employment.4

While your pesky headache might not immediately subside, some light pressure in the appropriate spots may ultimately shorten it.

1 Can you imagine the thoughts they’d have if I’d suggested a nearly undiagnosable soft tissue injury?

2 For some employers that means a day or two. For the more patient among you, keep reading.

3 That visual alone could result in workers’ comp claims.

4 Note the great number of terms in quotations. These are terms of art with meanings that vary significantly from what employers believe is “common sense.” In other words, don’t assume an accommodation isn’t “reasonable” or that an “undue hardship” exists without obtaining legal advice.

 

 

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