The U.S. Occupational Safety and Health Administration (OSHA) recently published a final rule to “Improve Tracking of Workplace Injuries and Illnesses.” The full text of the rule can be found here. The rule requires electronic submission of work related injury data for some employers. In addition, the rule serves to prevent employers from illegally discriminating and/or retaliating against employees for reporting work related injuries and illnesses. This means employers may no longer be able to use post-injury drug testing for all work related injuries. The new rule will be enforced beginning November 1, 2016.
Occasionally, employees want or need to be away from work after they have used up all their accrued vacation, paid sick leave, and paid personal time off. For example, an employee may be out collecting Workers’ Compensation benefits for months, even a year or more. So, you need to let employees know the circumstances under which they may take unpaid leaves, how long you may hold a job open, and when employment terminates. Here’s an example of a dilemma an employer might face.
I have a fairly good 48-year old employee who has a chronic problem with Workers’ Comp claims. This individual is constantly getting injured and missing a lot of work because of these injuries. I am afraid he is building up to a permanent disability claim. Can I legally terminate him?
Dismissing an employee for filing Workers’ Comp claims is a violation of public policy.
Courts have established and upheld state statutes protecting employees from being dismissed from their jobs for filing Workers’ Comp claims. In addition, your employee may very well be protected from discrimination by the federal Americans with Disabilities Act (ADA) and similar state laws.
I have employees who are literally accidents waiting to happen because they never seem to think before they take action. We have way too many Workers’ Comp claims. However, our foremen and supervisors don’t seem to be able to solve this problem. Can we discipline – or even terminate – employees for
“no brainer” injuries?
The answer to your question is “Yes” and “No.”
We’ll explain what we mean and elaborate on some points which may be helpful to you.
Disciplinary action should not result from an employee filing a Workers’ Comp claim or reporting a possible safety hazard. But disciplinary action typically may result when an employee knowingly and repeatedly ignores or violates a known company policy. The key word here is “known.”
How can you prove (if necessary) that your employee “knew” the policy, rule or procedure? Put your company policies and procedures in writing and have your employees sign an acknowledgement form that they received and read them.
First step: Don’t overreact. Don’t make accusations and don’t threaten.
Second step: If the employee’s stress is severe, get help for him or her from a professional counselor or a psychologist.
Third step: If the stress, and the resulting poor job performance, is caused by the employee’s personal (non-work) life, then back off. Don’t try to be a father, mother, brother, sister, priest, minister, or psychiatrist to your employees.
Legitimate Workers’ Comp claims can cost your business big money. Fraudulent claims can drive up your costs even more and for years ahead. What are the most likely ways employees can claim bogus Workers’ Comp? Following are claims to give special attention to:
Workers’ Comp is an important safety net of protection which benefits both the worker who risks injury on the job and the employer who would otherwise face potentially crippling liability for workplace injuries. The Workers’ Comp insurance system is intended to streamline claims, and take these issues out of the courts and into a no-fault context.
This helps workers get the cash flow they need to replace lost incomes right away. At the same time it helps employers avoid a lawsuit which could bankrupt them, arising out of the serious injury or death of an employee due to a workplace accident.
That said, some employers may actually be paying more than necessary for Workers’ Compensation premiums because they don’t understand how premiums are set, and what they can do to help improve their ratings to lower premiums.