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Welcome to the chat
First, do you have over 50 employees?
I received an email saying my questions were answered, but I do not see the answer?
No, we have about 25.
Please give me a moment to investigate this
And make sure another expert has not already answered your question for you
It does not appear that another expert has answered this question. Accordingly, I want to answer each of your questions in turn.
1. A workers compensation injury is any injury caused at or by employment. Accordingly, if the injury is in fact a pre-existing injury, then your workers compensation insurance will likely deny this persons claim.
2. Yes you can. Under the ADA you are required to allow this person to perform their job with reasonable accommodation. You cannot get their medical records, but you are allowed to inquire as to the state of this persons diagnosis.
2b) You are allowed to have an IME (independent medical evaluation) by a doctor of your choosing to review her. This is to deny/accept her claim. (do not admit that there is no modified duty)
Keep in mind that she is allowed to refute this review and request a second review at your expense
I should ask while I continue to respond. Do you have workers compensation insurance on this person?
Or are you self insured?
Yes, we do have worker's compensation.
3) If she refuses to go to a doctor as a result of an IME request, then her claim can be denied. However, under the ADA, you cannot refuse that she complete the exam. You can only request that her doctor provide enough information concerning her disability.
Your workers compensation insurance should take care of the IME for you.
If they deny the claim (likely given the facts you have presented) then you would not have to alter her job duties absent something from her doctor requesting a reasonable accomodation.
As to termination, you should be careful. It is against the law to retaliate against someone for filing a workers compensation claim regardless of whether the claim has merit
You are required to engage in the interactive process of discussing if she can do the job with a reasonable accommodation. Disability is defined as a medical condition which substantially limits a major life function
Here is a website that discusses this further.
This will give you the basics. Here is a much more detailed document that will answer all of your questions, but is much longer
Does all of this make sense? And have I left anything out?
Please feel free to ask any follow up questions you may have or ask for additional clarification in anything that I have said
In the past, whenever an employee has been given modified duty instructions by the worker's compensation doctor, we have always notified them that there is no available modified duty - there really isn't in our line of work - our folks are dog handlers/walkers - if they cannot bend over or lift/push/pull more than 50lbs, there is no work here for them as all the dog care requires that physical ability. So how can we have no modified work, but still be expected to make 'reasonable accomodation'?
The law states that an employer is required to give a reasonable accommodation that does not constitute an "undue hardship" to that employer.
Accordingly, if there is no possible job the person can do, or no reasonable accommodation, then you are protected. Thus, you can put the burden on the employee to come up with a reasonable accommodation that would allow them to do the job.
What steps are we legally required to take at this point? Directly approach her and say that we are now aware of her back issue and require her to see a worker's comp doctor to evaluate it? Or just ask for info from her personal doctor regarding her ability to complete the job requirements?
Let your workers compensation insurance deal with the evaluation of the claim. Accordingly, do not do the first. However, you are allowed to do the second. Then, if there is no reasonable accommodation where she could properly perform the essential functions of your job, you could legally terminate her. Just make sure you have that well documented in writing so as not to open yourself up to a lawsuit regarding discrimination based on a disability, or a lawsuit for retaliation based on filing a workers compensation claim
Remember though, that you cannot ask for her medical records. You can only ask for documentation related to her disability. Here is the EEOC guidelines on requiring medical documentation.
Ok, thanks for your help - it is much appreciated!
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