Ask Leslie: What Should I Prepare For Regarding An Injured Worker?

By Leslie Zieren, The McCalmon Group, Inc.

Dear Leslie:

I have 55 employees at my worksite. One of my long-time, full-time employees was injured when a piece of machinery fell on his back. He will require surgery and most likely, physical therapy. What laws could pertain to his situation?

Signed: Dennis

 

Dear Dennis:

There are several laws that come into play when a worker while working.

First, your state most likely has a worker's compensation law. Each state's law is different, but in general, this requires sending prompt notification of the on-the-job injury to your worker's compensation carrier; sending the worker for treatment; and maintaining, for the injured worker, job-protected leave to pursue proper medical treatment, along with retaliation protections.

The other two main laws that may come into play are the Americans with Disabilities Act (ADA) (which applies to employers with 15 or more employees) and the Family and Medical Leave Act (FMLA) (which applies to employers with 50 or more employees).

After completing workers' compensation treatment and/or rehabilitation, an employee may be released back to work – sometimes with no restrictions, temporary light duty restrictions, or even permanent restrictions.

Depending on the returning worker's condition, the worker may meet the definition of disabled under the ADA and be entitled to reasonable accommodations. According to the ADA, a disability is a physical or mental impairment that substantially limits a major life activity; a record of such an impairment; or a worker's being regarded as having such an impairment.

Because different laws have different definitions, it is possible the worker may have a disability according to your state's worker's compensation law but not meet the ADA definition.

Another law that may apply is the Family and Medical Leave Act (FMLA). The returning worker may need to take this leave to further recover. Eligible employees can take up to 12 workweeks of unpaid, job-protected leave for family and medical reasons, including to care for a newborn, to care for a spouse, child, or parent with a "serious health condition" (as defined under the FMLA), or, as in the case of an injured worker, to manage a serious health condition that prevents them from working. A worker's particular medical condition may or may not meet the FMLA definition of "serious health condition" and may or may not also meet the definition of "disability" under the ADA or under state worker's compensation statutes.

To be eligible for FMLA leave, workers must have worked for their employer for at least 12 months (the time need not be consecutive) and, within those 12 months, workers must have worked at least 1,250 hours.

If your head is boggled, you are not alone. This is why prudent employers work with their local employment counsel to determine which laws apply to each return-to-work situation. There may be other state or local laws that apply, in addition to those touched on here. A legal analysis must be done on a case-by-case basis.

Jack McCalmon and Leslie Zieren are attorneys with more than 50 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.

If you have a question that you would like Jack McCalmon or Leslie Zieren to consider for this column, please submit it to ask@mccalmon.com. Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.

 

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