When an employee is injured at work, you might feel like you’ve suddenly been thrown into the Bermuda Triangle of workplace laws—state workers’ compensation statutes, the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act Amendments Act (ADAAA). And that’s not to mention occupational safety and health standards.
It’s true—there are many issues to navigate. Will workers’ compensation apply? What forms of leave are appropriate? What if the employee cannot return to work? Does the injury raise broader safety concerns?
While no two situations are alike, there are a number of steps you can take when—and even before—you become lost in unfamiliar waters due to a workplace injury.
1. Plan for Medical Care
Establish a well-communicated protocol for handling employee injuries and illnesses. To start, you’ll need to determine who will be responsible for transporting a hurt worker to a health care provider and who to notify when an incident occurs. Make sure company procedures comply with Occupational Safety and Health Administration (OSHA) standards, such as those related to handling bloodborne pathogens in a health care setting. Consider inviting the fire department and other first responders to your company to become familiar with your facilities.
2. Investigate the Incident
While state workers’ compensation laws differ, they all share the same basic premise: Employees are entitled to recover benefits if they are hurt or experience an illness in the context of their employment. The bottom line is that your insurance carrier makes the call on whether an injury is compensable.
Still, you should conduct an internal investigation following the event. Interview witnesses and create incident reports. Develop any necessary countermeasures to protect against future risks. (Keep in mind that interviews and incident reports will likely 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 fines.
4. Evaluate Leave Possibilities
Time off 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 certifications from health care providers regarding time off 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 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. 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 accommodation, which could take the form of an ergonomic workstation, an extra break, a stool or perhaps, in some jurisdictions, even extended leave.
You may have to make further accommodations, such as additional time off 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 Opportunity Commission charges, ADAAA lawsuits and, in many states, suits alleging retaliation by employees seeking workers’ comp benefits.
[SHRM members'-only Q&A: Does Cal/OSHA require employers in California to keep a record of workplace-related injuries or illnesses?]
6. Scrutinize Your Policies
Most injured employees cooperate with efforts to return to work. Only a small percentage of people do not want to come back or will seek financial 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 recertification 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 difference 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.
Illustration by Adam Niklewicz for HR Magazine.
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