For years, employers have taken comfort in the “exclusivity rule” of Workers Compensation: Businesses traded their strict liability exposure for workplace injuries in return for limited exposure and payments. However, recent decisions under the Americans with Disabilities Act (ADA), Family Medical Leave Act (FMLA), and state tort laws have been eroding this doctrine. For example, an employer who fires an employee on Workers Compensation leave might face not only a retaliation claim, but a wrongful discharge suit under the ADA, FMLA, or state tort laws.
In dealing with the “Bermuda Triangle” of exclusivity issues – termination of health care and other benefits, “reasonable accommodation vs. light duty,” and termination of employment –experts recommend these guidelines:
- Give injured employees every reason to return to work.
- Speak to a professional before you take any adverse employment actions against someone who has filed a Comp claim.
- Make sure your employee handbook and other policy documents describe how you handle health care and other benefits payments to employees on leave. For example, although your health care provider might terminate coverage after 90 days of non-active employment, you might have a 12-week obligation under the FMLA, and perhaps an even longer obligation under your own policies.
- Move slowly. There’s usually no reason to rush.
- Finally, although checks and balances, including medical certifications, are essential, take the “high road” and treat employees as you’d want one of your family members to be treated.
Don’t trying to manage these situations on your own. It’s essential to get professional advice from your employment practices attorney or human relations department.
The Workers Compensation specialists at our agency would be happy to share their expertise with you, free of charge.
