- If the injury happened on the job, does your workers compensation policy provide a benefit?
Workers’ compensation requirements differ state to state. Some states, like Arizona, require employers to carry workers compensation coverage no matter how many employees the employer has. Other states, like Georgia, require employers to carry workers compensation coverage if they employee a minimum number of employees. Your employee may file a workers’ compensation claim with your states Board of Workers Compensation and, as the employer, your responsibilities (or those of your insurer) will be determined through that process.
- Do federal employment protections apply?
We represent many small businesses, and the first question we ask ourselves is: Does the Family and Medical Leave Act (FMLA) apply? If you have 50 or more employees then the FMLA may apply. But an individual employee is not covered by the FMLA until they have worked for 12 months for a minimum number of hours. If those components are both met, then the FMLA is triggered and you must comply with the requirements if your employee or his/her family member is experiencing a serious health condition. In that case, your employee may have twelve weeks of unpaid leave without losing their job.
Keep in mind that your state may have a family and medical leave act that either (a) applies even if the Federal FMLA does not apply or (b) provides more protection to employees than the Federal FMLA does.
The Americans with Disabilities Act (ADA) may also be relevant if your business has 25 of more employees and the employee’s illness or injury qualifies as a “disability.” Under the ADA, an individual with a disability is “a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.” If your employee’s illness or injury qualifies as a disability under the ADA, the ADA provides certain protections to the employee, including that the employer must provide a reasonable accommodation if it allows the employee to perform his/her essential job functions. Keep in mind that an employer is not required to provide a reasonable accommodation if it causes an “undue hardship” to the employer.
Just like with the ADA, there may also be state-level protections for an employee suffering from a disability.
- What are your contractual obligations?
The next step is to determine what the employer’s contractual obligations are. This may come from an employment contract, internal policies, and/or an employee handbook. Look for answers to questions such as:
- Are you contractually obligated to pay your employee a certain amount of PTO?
- Does the contract contemplate what happens in the instance an employee has a disability?
- Does the current situation qualify as a disability under the contract?
- Does your employee handbook offer additional benefits when an employee is injured?
- Do your internal policies offer protections when an employee must take off due to an injury?
Generally, the best bet is to clearly follow the contractual requirements and make that known to the employee.
- Are there practical considerations?
Yes, there are always practical considerations that we discuss with our clients. If our client wants to build loyalty with the employee, then there may be creative solutions, including paying the employee a retention bonus to assist them while they are off work with a requirement to pay it back if the employee leaves within a certain period of time. These situations pose a hardship for all involved but also present an opportunity to build a dedicated and loyal work force if it is within the business’s ability.
If you have employment questions or would like to discuss this blog post, you may contact our healthcare and business law firm at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, info@littlehealthlaw.com. You may also learn more about our law firm by visiting www.littlehealthlaw.com.
*Disclaimer: Thoughts shared here do not constitute legal advice.