HR Alert

Do I have to guarantee an employee's job following non-work related injury?

The most frequently asked question I receive is does an employer have to reinstate an employee who has returned following a disability? The answer depends upon the nature of the injury.

When one of your employees is injured while working she/he is entitled to file for Workers' Compensation Insurance. This is termed an "occupational injury" and your obligations as an employer are very straight forward and rigorous. Generally, your obligations include ensuring that the employee seek immediate medical attention and provide him/her with one of your Workers' Compensation forms. Any attempt upon your part to inhibit or forestall your employee from filing a legitimate claim will almost certainly get you into trouble.

When an employee is released from Workers' Comp. and wants to return to work do you have to re-employ him or her? The short answer is yes. The primary reason is that the employee was working for you when she/he became injured. Or had they not been working for you they would not have become injured. Yes, there are mitigating circumstances where you may lay off an employee on Comp. but this is an exception and not the rule.

What should you do?

Generally, all your employees who are on Workers' Comp. have a safe harbor for about a year and you are required to reinstate them should they return within that year. Please before you do anything to an employee on Workers' Compensation please call me. Otherwise, you risk a "132a Claim" which is a lawsuit filed by your employee alleging that you "retaliated" against him or her for filing a Comp. claim.

What about the employee who is injured (non-occupational) and cannot work as a result of a skiing accident? Well, unless you are running a ski resort and the employee was skiing in the course of work your obligations for reinstatement are minimal. Why? Because the injury was not related to their employment.

Employers become confused about the difference between non-work-related injuries (such as a weekend skiing accident) and a Workers' Compensation injury. Most employers believe that if an employee suffers a non-work related injury and brings a note from the doctor they must hold open the employee's position until she or he returns to work. Generally speaking when an employee suffers a non-work related injury she/he is not guaranteed a return to their position unless they are covered by one of several legally mandated leaves of absence such as the federal Family Medical Leave Act, California's Family Rights Act, pregnancy disability leave, Workers' Compensation or an accommodation for the Americans' Disability Act.

Let us suppose that you own and manage a small mortgage company and your sales person decides to play Joe Montana at his high school reunion and breaks one of his legs. Anticipating your displeasure he has his wife bring you a note from his osteopathic surgeon verifying that he will be disabled for the next two months. Do you have to keep the job open until his return? Not necessarily.

What should you do?

• Before terminating Joe Montana's protégé who is on an extended leave of absence following a non-job related injury, determine whether any leave laws might protect the employee's leave of absence.
• Develop a policy that addresses non-occupational injuries and insist that employees use all their accrued and unused paid vacation and sick leave during the course of the leave of absence. We can incorporate this policy the next time we update your employee handbook but for the present you may wish to issue the policy in the form of a memorandum.
• Set a fixed amount of time (perhaps thirty days) in which you will guarantee reinstatement.
• In your policy address the impact that a leave of absence will have on employee benefits, e.g., will paid vacation and paid sick leave continue to accrue during the leave?

As always, when in doubt, please call me

- Larry

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