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When making the decision to return an injured employee to work, there are several significant legal issues that must be considered as a result of both state and federal law.

The first consideration is your state’s Workers Compensation laws. Although a common objective of Workers Compensation laws is to facilitate the injured worker in returning to a productive job, not all states approach this goal in the same manner.

Your state’s approach probably falls into one of the following three categories:

• States that provide for a specific number of weeks of rehabilitation and a limited amount for training for the injured worker. After training is complete, the worker is considered rehabilitated. This training component also limits the employer’s liability to find another job for the claimant.
• States that are considered defined benefit states. A worker is paid for his temporary total disability. If disability reaches a predetermined percentage of body loss, however, the employer can issue a lump-sum payment and close the case, whether the worker can return to work or not. Rehabilitation is a minor part of this approach.
• States that use loss of earning power as qualification for benefits. Once a worker is injured, his Workers Compensation benefits will continue for life unless he is proven to have an earning power. In these states, the employer at the time of injury must offer a job to the injured employee if one is available within the employee’s physical restrictions. If this is not possible, the law requires that rehabilitation efforts begin.

The Americans with Disabilities Act (ADA) also presents certain legal considerations concerning the manner in which an injured employee is returned to work. The first consideration is regarding the collection and maintenance of the injured employee’s medical information.

The ADA requires employers to collect this information to determine how to accommodate an employee’s disability and whether the employee is capably of performing a specific job. However, the ADA also mandates that employers:

• Treat this information as a confidential medical record.
• Maintain this information on separate forms and keep the forms in separate files.
• Not use this information for any purpose that is inconsistent with the ADA.

There are also specific rules regarding the disclosure of such information. Supervisors and managers may be informed about necessary restrictions and accommodations arising from the disability. In addition, first aid and safety personnel can be informed if the employee’s condition may require emergency treatment.

Another key consideration under the ADA is whether or not the returning employee is eligible for a particular job. The law says that if an employee can perform the essential parts of a job, they are eligible, even if certain minor aspects of the job cannot be performed. Employers are required to make reasonable accommodations as necessary so that the employee can perform the job. This is what is commonly referred to as a “light-duty” assignment.

Decisions regarding necessary accommodations must be accomplished through a joint process involving the employer, employee, and the employee’s doctor. A company refusing to make reasonable accommodations is at risk for a lawsuit. A worker who refuses reasonable light-duty work risks having their benefits or employment terminated.

”Respondeat superior” is a Latin phrase that translates “let the master answer.” This is legal jargon relating to the breadth of the employer’s responsibility for the actions of his employees. Literally, and in basic terms, any injurious or wrongful act of an employee within the course and scope of his employment creates liability for the employer (the master). This is commonly known as “vicarious liability.”

An employer’s liability for injury or damage caused by employees is considered “vicarious” because the act was not committed by the employer, but by individuals for whom the employer is responsible. Just like a parent is responsible for the actions of a child, even if the parent had no knowledge of what the child was doing, so too is the employer responsible for the employee’s actions.

When crews are spread over several job sites, the employer loses some direct control over the actions of the dispersed employees; however, he is not relieved of his responsibility for the actions or inactions of these workers. The “master” will be required to financially stand up and answer for any injury or damage caused, even though he might not have been aware of those actions.

Within the framework of construction operations, the employer is obviously responsible for any work done incorrectly or poorly. For example, if an employee of a plumbing contractor does not properly cement or solder a pipe, leading to severe water damage from a break at the connection point, the employer is expected to pay for the damages.

Beyond simply being vicariously liable, the employer has the potential to be accused of “negligent entrustment.” Negligent entrustment can be asserted when an employer allows an unqualified person to use a dangerous instrumentality. Construction sites teem with dangerous instrumentalities; from items as simple as nail guns and power saws, to man lifts, grading equipment, and trenching equipment. Employers owe a duty to the employee, others on the job site, and even the general public to affirm an employee’s ability to safely and correctly operate equipment necessary for their job.

To avoid breaching this duty and allegations of negligent entrustment, the employer must test employees to confirm they are adequately trained to operate the equipment they are expected to use. This can be accomplished by observing the employee’s use of the equipment and correcting misuse. Observation and training should be done by a highly trained supervisor or by the supplier. The training must include detailed safety instructions and “what-if” scenarios. Once the employee has been “cleared” to use the equipment, continued observation is necessary to ensure the employee doesn’t become careless.A common response to recommended training and testing is, “We don’t have time for that.” This may be true, but if you don’t have time to train, do you have time to go to court? Also, do you have the funds to pay the damages? Successful negligent entrustment suits often involve punitive damages that could drastically increase the cost for that particular incident.

Vicarious liability and charges of negligent entrustment aren’t limited to your employees. You may also face liability for the actions of entities or individuals to whom you sub-contract work. Making sure you hire qualified and properly insured subcontractors is of vital importance.

You, as the saying goes, are your employee’s keeper. Not due to lack of trust, but because you are ultimately responsible for the results and consequences of their actions. Choosing, training, and monitoring your employees and subcontractors will allow you to avoid or at least minimize many of the potential problems.

Harassment and discrimination can spell big trouble for a business. It can cause disruption in the workplace and lower employee morale. It can also result in lawsuits that have the potential to cost employers hundreds of thousands of dollars — or even more.

The U.S. Supreme Court has held that employers can be found liable for harassment and discrimination claims, even if the employer wasn’t directly aware that harassment and discrimination were occurring in the workplace. Employers are expected to take a proactive stance, and an employer who has not addressed the issue at work is vulnerable in the event of a lawsuit.

What are harassment and discrimination?

Harassment and discrimination are defined by federal, state and local laws. Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, gender, creed, religion and national origin. Other laws prohibit discrimination on the basis of age, disability and pregnancy.

Harassment can include any verbal, written or physical act that makes employees uncomfortable at work or interferes with their ability to perform their jobs. It can include jokes, emails, cartoons, drawings or other material that is suggestive or reflects negatively on a protected class. It can include slurs or offensive language.

What can you do about it?

As an employer, you can be held accountable for all forms of unlawful discrimination and harassment, so it pays to have a proactive policy to protect your business and your employees. Here are some ways you can begin to address the issue:

Create a harassment and discrimination prevention policy: Make sure employees know that you will not tolerate harassment or discrimination. A formal written policy outlining your commitment to a harassment and discrimination-free workplace is a good way to start. Many employers include such a statement in employee handbooks that are distributed to all employees and collect a signed statement of understanding from each employee. Others combine a written statement with a mandatory employee training session.

Outline steps employees should take: Your policy should also include a method for employees who feel they are being harassed or discriminated against to report the behavior. A formal investigation process is also important. Some companies ask employees to report their concerns to their immediate supervisor first or to the next person in the chain of command to begin an investigation. Others direct employees to bring their concerns directly to the office manager or HR department. The important thing is to make sure the method is clear, easily accessible and highly confidential.

Make sure employees know you and your management team take your policy seriously: One of the best ways you can gain employee buy-in for your policy is to make sure you and your managers demonstrate that you believe it is important. Whether during a meeting or in informal settings, it’s a good idea to stress the amount of harm harassment and discrimination can cause and to make sure employees know they can come to you if they’re not treated fairly.

Taking care of business

In today’s competitive business environment, it can seem like there is too much information to process and too many tasks to perform. It can be tempting to put issues like harassment and discrimination prevention on the back burner, particular for a company that started out small but is growing rapidly. However, taking the time to establish and communicate a proactive policy is a wise move — one that can help you protect your company and build a stronger workplace in the long run.