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HR That Works

Strategies and Tools that Will Inspire Great HR Practices for Your Agency and Clients!


Don Phin Don Phin , 3/4/2014
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For years employers have taken comfort in knowing that someone injured on the job was subject to the exclusivity rule of Workers Compensation: Businesses traded off their strict liability exposure to workplace injuries for a limited exposure and payments. However, decisions under the Americans with Disabilities Act, the Family Medical Leave Act, and state tort laws have eroded the exclusivity doctrine. For example, an employer firing an employee who’s on Workers Compensation leave might face not only a Workers Comp retaliation claim but a wrongful discharge suit under the ADA, FMLA, or state tort laws.

Employers must rely on the advice of their human resources professional, claims manager, employment practices attorney, and Workers Compensation attorney in handling the “Bermuda Triangle” of exclusivity issues, including those related to termination of health care and other benefits, the question of “reasonable accommodation vs. light duty,” and termination of employment. Trying to manage these claims on your own is a formula for disaster.

Here are some general guidelines in dealing with this complicated area:

  1. Give injured employees every reason to return to work.
  2. Speak to a professional before taking any adverse employment actions against someone who has filed a Comp claim.
  3. 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.
  4. Move slowly. There’s usually no reason to rush it in this area.
  5. 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.