National Clothesline

How long does an employer have to keep a person collecting workers’ compensation on the payroll?

The answer to this question may surprise you. In most states, the workers’ compensation laws do not require companies to keep employees on the payroll just because they are absent due to a work-related injury.

Virtually every state prohibits firing an employee merely for filing a workers’ compensation claim, but virtually every state narrowly interprets these anti-discrimination provisions. In my home state of Maryland, for example, an employee can be fired for absenteeism, even if the absences were caused by compensable injuries.

Eventually, every state permits the employer to remove and/or replace the employee from the payroll once it is clear that his return is unlikely or far into the unpredictable future.

It helps if the employer has a policy, uniformly applied to absences, that employees who have not worked for a particular period of time (for example, 60 or 90 days) are subject to termination and removal from the payroll. That policy can also deal with whether benefits are paid during the period of the employee ’s absence, whether for work-related or personal health reasons.

There are exceptions under the Family and Medical Leave Act, which applies to employers with 50 or more employees within a particular geographical area.

The 12-week leave requirement of the FMLA must be honored, and the employer can take steps after the 12-week leave period to permanently replace the employee.

At least under the FMLA, however, there are rules and interpretations that give employers some clue what to do with an employee out for a serious medical condition.

Even an employer covered by the FMLA needs to have a policy for dealing with ineligible employees who take medical leave not covered by the FMLA. It is not unusual for an employee to get hurt the first week on the job. That employee is covered by workers ’ compensation, but not by the FMLA.

At what point can you tell that employee that his short career with your company is over for good?

I recommend to my clients that they have a policy dealing with long-term absences under the FMLA and absences not covered by that law. The policy should set limits for the time an employee can be on leave, and the policy should set forth if benefits will be paid, and if so, for how long. The policy should cover pregnancy leave for absences, again, not covered by the FMLA.

I also recommend that employers be aware of their obligation under the Americans with Disabilities Act to accommodate employees who return and who may now have disabilities as a result of their injuries or illness.

In some states, for example California, disability is broadly defined. In most states, disabilities are different from transient injuries. Bone disease causing standing problems is probably a disability; a broken leg is not, at least under the ADA.

Once an employee is able to return to work in some capacity, you should be aware that there is no absolute requirement that you offer “light duty” work.

Generally, light duty is not automatically a reasonable accommodation under the ADA, especially if it requires creating a job for the employee.

Except for the ADA, there is no workers’ compensation requirement that employees be given light duty

Employers offer light duty, however, primarily to reduce their workers’ compensation costs, and consequently keep their experience ratings lower.

Another thing employers should keep in mind is how to deal with lawyers representing employees in workers ’ compensation cases.

First, you should refer them to your lawyer if they call for information.

Second, you should know that you do not have to deal with an employee’s lawyer instead of the employee directly. Under no circumstances do you have to honor a request or demand by a lawyer that you not contact their client (your employee) concerning the status of his health and possible return to work. If the employee refuses to talk to you directly, you can consider this as a reason to sever the employment relationship.

Finally, companies need to stay on top of employees out on leave, whatever the reason. Each month, they should review the list and decide, on a case by case basis, if this is the month to take some sort of action.

Termination is not always the end result, but there is no reason for an employee to be on the payroll two years after he went out, apparently forever, on workers ’ compensation.

It helps to have legal advice before you take action, but make sure you use an attorney who understands that you have the right to run your business and take appropriate action. There are plenty of lawyers who think, incorrectly, that the employee has all the rights.