be discoverable in any subsequent
litigation and OSHA investigations.)
3. NOTIFY OSHA
When certain serious injuries occur,
employers will need to inform
OSHA. For deaths, you must do this
within eight hours. For amputations
and inpatient hospitalizations, you
have 24 hours to report. Failure to
do so could include citations of at
least $750.
Even in less severe cases, an
injured employee may make a
complaint to OSHA. Either way, be
prepared for the possibility of an
OSHA inspection and fnes.
4. EVALUATE LEAVE
POSSIBILITIES
Time of under the FMLA may run
concurrently with workers’ compensation leave, thereby limiting
the period during which an injured
employee is absent from work.
But many employers do not take
advantage of that. Don’t make that
mistake. Ensure that leave is designated properly under the FMLA.
Closely evaluate the medical certifcations from health care providers
regarding time of and make sure an
employee’s time out of work conforms with the information in those
documents.
If the FMLA doesn’t apply, consider permitting other forms of leave,
such as sick or personal time.
5. REMEMBER THE ADAAA
An organization should have a policy
requiring employees to be able to
perform essential job functions with
a reasonable accommodation. When
the condition of an injured employ-
ee who is out on leave reaches a
point where it cannot get any better
(known as “maximum medical im-
provement”), many employers mis-
takenly assume that their respon-
sibilities end. However, health care
providers may assign job restrictions
to people with workplace injuries.
And if an underlying impairment
substantially limits a major life
activity, the employee will likely
be considered disabled under the
ADAAA. At that point, you’ll need
to provide a reasonable accommo-
dation, which could take the form of
an ergonomic workstation, an extra
break, a stool or perhaps, in some ju-
risdictions, even extended leave.
You may have to make further
accommodations, such as addition-
al time of or a transfer, after the
employee returns to work following
FMLA leave. That’s why it’s wise
to consider all options before you
decide to terminate someone based
on his or her inability to return to
work. Failure to do so could result
in Equal Employment Opportuni-
ty Commission charges, ADAAA
lawsuits and, in many states, suits
alleging retaliation by employees
seeking workers’ comp benefts.
6. SCRUTINIZE YOUR POLICIES
Most injured employees cooperate
with eforts to return to work. Only
a small percentage of people do
not want to come back or will seek
fnancial gain from their injury.
Still, you want to be prepared
for the worst. Closely evaluate
your existing policies. Are they too
open-ended? Do they leave room
for abuse? Are job descriptions up-to-date? What procedures can be
tightened up while still complying
with applicable laws?
7. STAY INFORMED
When an injury occurs, use all the
resources available to you, including
company doctors and case nurses.
Obtain additional medical information. Seek recertifcation under the
FMLA, especially when a person’s
leave schedule far exceeds the treating physician’s directions.
8. DON’T FORGET ABOUT OTHER
WORKERS
When people see or hear about one
of their colleagues getting hurt on
the job, they can be understandably concerned and anxious. Good
communication can help. If there
are safety issues, address them with
other employees and ask for suggestions about how to make things
better. Obviously, HR cannot share
medical information, but you can
take the time to listen. Make sure
everyone understands the company’s
commitment to the well-being of all
workers.
While workplace illnesses and injuries cannot be anticipated, they can
be managed more smoothly when
you put policies in place beforehand.
Of course, you’ll need to tailor your
approach depending on the situation,
but having a solid foundation in place
can make all the diference in helping
a person return to work safely while
avoiding lawsuits and murky legal
waters.
Kathryn Willis is
a partner at Burr
& Forman LLP in
Mobile, Ala.
When the condition of an injured
employee who is out on leave
reaches a point where it cannot get
any better (known as ‘maximum
medical improvement’), many
employers mistakenly assume
that their responsibilities end.
