FMLA/Return to work question

txls

Well-Known Member
Jurisdiction
Texas
An employee was injured on the job and has now been released by his Doctor back to work.
However, since he was out for 6 months his prior position has been filled and that person doing a better job than the injured employee. There is another position where he could be placed that is a little higher up the ladder. This job however requires more physically. Q1. If we offer him and he accepts this new position, should we/can we require another release from his doctor based on the new requirements? Q2. If he does not want the position or his doctor will not release for this position, do we have to put him back in the original position.
 
WC is not my specialty.
From what I know, an employee returning from WC can be offered the same, or similar position.
You can always offer the person a promotion, if he or she accepts it.

I'd be concerned about the better position requiring more strenuous work.
You might see if his physician has any issues with him doing work that is more physical.

Most employers allow the employee to return back into the same or similar job if the employee's prior position can be modified to accommodate the injuries.

Otherwise, a temporary position could be created or the employee placed in a vacant job that requires less strenuous movement.

The TDI has a pamphlet that you might find useful reading:

http://www.tdi.texas.gov/wc/rtw/documents/rtwguide.pdf
 
WC actually doesn't require that a position be kept open, it's really more FMLA that does.

Yes, but the principle is the same.

If your firm is large like Apple, IBM, or GE; its easier to return the person to the same position.

If you're smaller firm, 100, 300, 500, or 1,000 employees; you have some leeway.
 
An employee was injured on the job and has now been released by his Doctor back to work.
However, since he was out for 6 months his prior position has been filled and that person doing a better job than the injured employee. There is another position where he could be placed that is a little higher up the ladder. This job however requires more physically. Q1. If we offer him and he accepts this new position, should we/can we require another release from his doctor based on the new requirements? Q2. If he does not want the position or his doctor will not release for this position, do we have to put him back in the original position.

It seems any job protected FMLA has elapsed. However; if he is offered a different job, he might say he can't do it without an ADA accommodation. Maybe Elle will come by tomorrow - she knows quite a bit about WC.
 
You would think FMLA was exhausted except I don't think any FMLA paperwork was done. Ofc Mgr was out yesterday so we will find that out today.
 
"The workers' comp law does NOT require an employer to hold a persons job for them, or to return them to their preinjury wages or job".

This is an email I have from Pat Crawford ( the author or the guide in the link above)
Now he does go on to say you need to consider past practices, etc.
 
You are correct that WC does not require the job be held. I would get an opinion on the new job requirements for good measure. If absolutely necessary, get a workability exam, but if he was just released, whomever just released him should be able to opine as to his ability to do the new job. Then offer the new job. If he declines, you part ways just as would be the case with any other employee who turned down work. Keep the carrier in the loop and TTD should be cut off once you make the offer/he starts the new job. If he voluntarily takes himself out of work, WC stops covering indemnity. UI may kick in but is unlikely if voluntary.

If it turns out he is not released to do the new job, you have a couple options. You can offer additional rehab to get him to the point that he can return. If he will not ever be able to do that kind of work, you can look for something he can do. Maybe offer the good worker the higher level position and put him back in the old one. You can part ways and *shouldn't* have to pay indemnity if he is truly at MMI, but that is not always as cut and dry as it sounds. Getting that second opinion that says he still can't work isn't hard and when faced with being unemployed post injury due to an action by the employer, TTD can be granted by sympathetic adjudicators. If there is a substantial degree if PPD, voc rehab might be a consideration. Talk to your carrier. Many will balk at VR for someone who *could* return.
 
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