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Question added to topic Human ResourcesDecember 12, 2009

Can an employee be let go after returning from a workers' compensation claim?

I have an employee who broke her leg while in the office and required surgery--she was out on a workers' compensation claim for the last five and a half months. She is expected back next week but is only willing to work for four hours every day because her leg is still weak. The company has been struggling to get her job done without hiring additional help. The employee in question is over 70 years old.
Not knowing in what state you do business, I cannot respond as knowledgeably as I would be able to do otherwise. Workers compensation laws are different in each state.

You should not return the person to her job without a return to work certificate or letter from the employee’s primary physician indicating that the employee may return to work and any work restrictions that the doctor advises.

This should also include the length of time these restrictions apply. If restrictions are involved, the employee’s visits to see if the restrictions can be removed should be at least as frequently as monthly. Insist on that. A good way to do this is to supply the primary physician with a job description that includes the physical requirements of the job so that the physician has that information on which to base his/her advice regarding restrictions.

If no restrictions are recommended by the primary physician, you can insist on the employee returning to work on a full-time basis--but be prepared for resistance on her part.

If restrictions are recommended by the primary physician, you must determine if you can reasonably accommodate the restrictions. If you have 15 or more employees, you must abide by the Americans with Disabilities Act and/or the Americans with Disabilities Act Amendment Act in these regards.

If your assessment indicates that you cannot accommodate the restrictions advised by the primary physician, you can terminate the employee. But be aware that the best course of action is to consult with an attorney who specializes in employment law in your state before taking that step.

There will be exposure to a claim of age discrimination and/or discrimination under the ADA/ADAAA if the employee is so inclined to take umbrage at being fired because she was hurt on the job.

A more prudent course of action might be to find a way to accommodate this individual for the time being and see if she is able to do her full job within a reasonable period of time.

You might hire a temporary part-time employee to pick up the slack, for example, instead of continuing to overburden other regular employees indefinitely.

Penny is a seasoned human resources executive and consultant with over 25 years of diverse business experience in advising enterprise leaders on employment-related matters.

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