Attorneys David Roos (pictured left) and Michael McCabe met with several attendees at the HR Law & Solutions seminar last month, in a question and answer session to address specific issues from a workers’ compensation perspective. A major focus of the questions centered around the extent to which HR policies, practices, and procedures would be affected by a pending workers’ compensation claim. Questions also addressed how much control an HR manager or employer has over issues that would normally result in disciplinary actions, including termination.
Have Consistent Policies and Procedures
David and Mike explained that an employer retains the same level of control over employee conduct regardless of a pending workers’ compensation claim, and that an employer could exert that control through consistent implementation of HR practices and procedures. According to David and Mike, this would eliminate potentially expensive employment law actions such as retaliatory discharge. HR professionals need to maintain the same practices and procedures that apply to all employees, and need to keep in close contact with their insurance company adjuster and defense attorney (if one has been retained) to make sure that the employer is aware of how an HR decision affects the pending workers’ compensation claim. Understanding how HR decisions, such as termination, affect the underlying injury claim allows the employer to understand how those decisions will increase (or decrease) the costs of a workers’ compensation claim – and ultimately future insurance premium increases.
When Does Termination Affect Workers’ Compensation Benefits?
For example, the attendees were reminded earlier in the day that the ADA requires an employer to attempt to provide for reasonable accommodations for an employee who is injured or disabled. The same practice should be exercised during a pending workers’ compensation claim. An employer who makes sure to understand an employee’s workers’ compensation restrictions can make sure to bring the employee back to work until their full duty release, thereby limiting claims costs and future rate increases. With regards to termination, the attendees were informed of recent case law which states that until an employee reaches maximum medical improvement (MMI), a termination (or sometimes even a voluntary resignation) does not stop an employee from continuing to be entitled to workers’ compensation out of work benefits. Only a termination for “misconduct,” rather than simply “for cause,” eliminates an employee’s ongoing entitlement to temporary disability benefits until they reach MMI. Ultimately, David and Mike explained that the best way for an employer or HR professional to make informed HR decisions is to make those decisions after speaking with their insurance adjuster and defense attorney. This way HR decisions can be made with full knowledge of any potentially unintended consequences.
David and Mike want to make sure attendees of the question and answer session understand that the employer retains full control over an employee regardless of whether there is a pending workers’ compensation claim. By using strong HR policies, practices and procedures, and by implementing consistent workers’ compensation procedures and communications, employers and HR professionals can be confident in the decisions they make.
Update on Workers’ Compensation Fraud
David also provided an update on workers’ compensation fraud in Florida, and shared some tips and case law in support of asserting a fraud defense. A copy of the handouts can be downloaded here.