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Oct 31, 2013

Injured employees in the workplace


Category: Employment

An employee is injured at work – everyone thinks, oh, ok, that’s a worker’s comp problem and off the employee goes to the ten-day provider for an evaluation.  But is that all that applies in terms of employment laws?  The answer is no.  Because so many issues arise in situations like this, it helps to understand a bit about the legal background to understand how to react, regardless of whether you are an employer or employee. 

The Maine Human Rights Act (“MHRA”) prohibits discrimination on the basis of sex, race or color, religion, handicap, national origin or ancestry, whistleblower activity, and age.  It also prohibits retaliation against an employee or applicant asserting rights under the MHRA.  The MHRA applies to all companies, of whatever size.  The Americans with Disabilities Act (“ADA”), which is a federal law, applies to companies with 15 or more employees.  The MHRA is interpreted similarly to the ADA with respect to issues regarding injured employees.

In Maine, when an employee is injured, both the MHRA and ADA may apply, depending on the number of employees you have, and depending on the injury.  The ADA, and the disability discrimination prohibitions of the MHRA, apply if the employee’s injury is a physical impairment that “substantially limits a major life function.”  There is a lot of litigation over what those terms mean so that the safest approach in terms of minimizing the risk of litigation is to assume that an injury is covered.  Temporary and non-chronic impairments of short duration do not constitute a disability covered by the ADA and MHRA; for example, appendicitis, concussions, sprains, broken limbs, and influenza are not “disabilities.”  If an injury is not a “disability” protected by the ADA and MHRA, it means, technically, that you can treat that employee differently because of their injury without breaking the law, including firing them.  You do run the risk, however, of the employee arguing successfully that you “regarded” them as disabled, which is illegal.  The focus in that circumstance is on what you thought of the employee, and what your biases were, not on the employee’s actual medical condition.

If the injury arises out of and in the course of employment, workers’ compensation will also come into play.  If you employ 15 or more persons, the Maine Family Medical Leave Law will also apply if the injured employee has worked 12 consecutive months for you, and the employee is suffering from a “serious health condition.”  “Serious health condition” has been defined as meaning: inpatient care in a hospital, hospice or residential medical care facility, or continuing treatment by a health care provider.  26 M.R.S.A. § 843.  If family medical leave applies, you must provide the employee with up to 10 weeks of unpaid time, if requested.

Assume an employee is injured on the job, must miss several weeks of work, and can return to work only if he lifts no more than 10 pounds at a time.  What do you do?  Assuming an injury arising out of and in the course of employment has caused the employee to miss a day of work or you know of the injury, you should first report the injury to your workers’ compensation carrier and follow their instructions.  You must report the injury within 7 days of receiving notice of this injury or when you learned of the injury.  You must complete a “report of first injury form” for any injury that has received the services of a health care provider within 7 days after you receive notice or have knowledge of the injury.

Next, determine if the Family Medical Leave Law applies.  If it doesn’t, you have one less factor to worry about.  Assume the employee does not qualify for family medical leave.  You do not know what the employee’s condition is and you do not know how long they may be out.  You have a right to know whether the employee is physically able to do their job, with or without accommodation.  You may, and often should, write to the employee and ask them to provide you medical certification as to when they can return and whether they can perform the essential functions of their job, with or without accommodation.  It is best if you have a job description listing what the essential and nonessential parts of the job are because you can send that to the employee and ask them to have a doctor certify whether they are capable of doing the essential parts of the job.  A doctor’s opinion is not worth much if he or she does not know what the job entails.  The focus during these communications should be on whether the employee can do their job, not on their medical condition other than how it affects their ability to do their job.

What is meant by “accommodation” here is that you, as employer, must work with the employee to determine if there are changes to the nonessential parts of their job that can be made that would allow the employee to do the work or equipment or changes in procedures that would allow the employee to do the work.  For example, a loading dock worker who hurts her back may be able to continue unloading trucks without harming her back if provided with a dolly, a hand truck, or a cart.  Purchasing one of those items would be a reasonable accommodation that the law would require.  The federal government has created a resource called ADA-WORK that you can call for information on accommodations.  Call 1-800-ADA-WORK (232-9675) for information about the ADA and call the Job Accommodation Network at 1-800-526-7234 about accommodations (or check out their website at: http://askjan.org/). 

“Reasonable accommodation” is also a term used in the workers’ compensation context.  Under the workers’ compensation law in Maine, “the employer must make reasonable accommodation for the physical condition of the employee unless the employer can demonstrate that no reasonable accommodation exists or that the accommodation would impose an undue hardship on the employer.”  In determining whether an undue hardship exists, the Workers’ Compensation Board will look at the size of the business, the number of employees, the nature of the business operations, and “any other relevant factors.”  For workers’ compensation, then, you need to communicate with the employee about what, if any, accommodations would permit them to do their job, just as one would do under the discrimination laws and the requirement of an interactive process.

If the employee cannot work for several weeks, you need to consider whether you can or must allow them the time off.  In making this determination, you should always look at your personnel policies as well as how you have handled similar issues in the past.  Even if the person is not entitled to family leave, they may have sick time, personal time, or vacation time they should be able to use.  In addition, it is possible that a short amount of time off would be considered a “reasonable accommodation” and therefore required under the ADA.  As the Equal Employment Opportunity Commission (“EEOC”), the agency enforcing federal anti-discrimination laws, put it: “Flexible leave policies should be considered as a reasonable accommodation when people with disabilities require time off from work because of their disability.  An employer is not required to provide additional paid leave as an accommodation, but should consider allowing use of accrued leave, advanced leave, or leave without pay, where this will not cause an undue hardship.”

This article is not legal advice but should be considered general guidance in the area of injured employees in the workplace.  Rebecca Webber is an employment attorney at Skelton, Taintor & Abbott in Auburn, Maine.  You can reach Rebecca Webber at 784-3200; or rwebber@STA-law.com.