Injured employee

Allisons · March 2005

I have an ee that has notified me that her job is "physically challenging". Our employees do one-to-one in home nursing care. She has had a several previous injuries and we have accommodated her as best we can. She is currently working on the easiest case (physically) in her area to accommodate her past injuries. In a conversation with her she told me that her client is physically challenging but that she wants to stay working there because she needs the work. We do not feel that this is safe for her or the client. We also do not have any other way to accommodate her on this case nor do we have any other positions available for her, regular or light duty. Now that we are aware of the fact that she is physically not able to provide care and that there is a chance for further injury can we lay her off due to lack of work? Is there something we are overlooking as far as employment law?

Don D · March 2005

You would not 'lay her off due to lack of work'. The work is there. She just can't do the available work. Laying her off 'due to lack of work' qualifies her for unemployment insurance and a ding against your company experience rating.

If I were in your shoes I would get her to specify what it is she cannot do, rather than accepting her comment that the work is physically challenging. If she told me that she could not comfortably do essential parts of the job because of her physical limitations or past problems, yes, I would remove her from the job by either suspending her or telling her we cannot afford to use her, both because of our concern for her personal health and for our own liability concerns, period.

If you don't get her off the job, first thing you know, you'll be buying a rotator cuff or miniscus or lumbar disc.

pork1 · March 2005

Don is right own, having the ee put her concerns in written format locks her story down to the self admissions of her failing abilities to preform. From there, I believe I would get a formal medical opinion of the ee's physical abilities. She has admitted to being medically unqualified for the postion. If she is correct, based on physician's certification, I would terminate her as medically disqualified. If the physician certifies that she is physically healthy and capable of mentally and physically able to perform, then call the "spade a spade" and terminate the ee for incompetence or whatever term you policy and procedures call forward in cases like this!

PORK

Balloonman1 · March 2005

What I have done in the past like they are suggesting is send her to a WC Doc that you can explain the situation to. Provide them with the job description and physical demands. THey can do a FCE, Funcitonal Capability Exam, or may based on some other testing determine what they feel are appropriate permanant restrictions. THey you can either accomodate them or you cannot. I always ask the employee for input to what other job they can do or how they can do their job with reasonable accomodation.
If they cannot I let them go for being physically unable to do that job. I also say, it does not mean you cannot work, it just means we do not have any jobs within your physical ability. THis DOES NOT make them disabled.
My $0.02
The Balloonman

PS.
I have been doing this since 1994 and last year or the year before there was a supreme court case validating this method and that it does not make the person disabled.

pork1 · March 2005

I meant to also point out that, when we term them as medically disqualified, I insure words are in place that channels the medical disqualification to "OUR INDUSTRY", thereby, leaving a whole bunch of other industries with whom this person could work and work successfully.

PORK

Injured employee

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