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Employee facing amputating fingers. Non workinjury but

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Employee facing amputating fingers...

Employee facing amputating fingers. Non workinjury but impairs his ability to do his job as a low voltage electrician. What is my obligation an employer

Lawyer's Assistant: Can you tell me what state this is in? And do you have copies of any medical records?

GA. No. Says he will be back to work in a few days. We are a small business 10-12 employees

Lawyer's Assistant: Has anything been filed or reported?

It was not work related

Submitted: 1 month ago.Category: Legal
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Answered in 7 minutes by:
1/5/2018
Lawyer: Dwayne B., Attorney replied 1 month ago
Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 34,389
Experience: Began practicing law in 1992
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Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today.

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Lawyer: Dwayne B., Attorney replied 1 month ago

Please allow me several minutes to read your facts and type my response both initially and when you add a follow up question or add facts. Please don't ask "are you there", "where is my answer", etc., since when you post it can erase what I am working on. If we are having a conversation unless I tell you I am going offline, I will be here but I may be doing research.

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Lawyer: Dwayne B., Attorney replied 1 month ago

What is your obligation as far as what?

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Customer reply replied 1 month ago
Employment. He is clearly a workman’s comp risk if we let him return right away or at all.
Customer reply replied 1 month ago
He crushed his index finger on his dominant hand working on his car on his day off. We don’t have any “light work duty”. He has been employed less than a year and is not a key employee with any advanced training. We took him on as a trainee.
Lawyer: Dwayne B., Attorney replied 1 month ago

You are under an obligation to let him return, or at least not to terminate him, due to his injury since it will no doubt be considered a "disability" under the Americans with Disabilities Act. The best way to handle that issue is to hire a local employment lawyer to draft a letter explaining that you are going to allow him to come back to work but he must be both safe and able to continue doing his work. You can also ask at that time for any "reasonable accommodations" he wants to request. It's not something you want to do yourself, since it is very easy for an employer to act in a way that can be misinterpreted and thus subject you to liability.

Please ask any follow up questions in this thread.

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Customer reply replied 1 month ago
As a tech he climbs a ladder, Carryies heavy boxes, wires up fire alarms which requires dexterity. Can we require a doctors release like we require on a workman’s comp injury.
Lawyer: Dwayne B., Attorney replied 1 month ago

Yes, although it isn't the same type of release. Many employers believe that using the same release and procedures will protect them, but it will not. The ADA is an entirely different law and has entirely different purposes. That's the reason I normally tell the customers to speak to a local lawyer and let them handle the initial paperwork. After that, and after you see how the process worked, the employer can usually handle the next one themselves or with much less assistance.

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Customer reply replied 1 month ago
This is devastring for him but he is putting other people and property at risk. I am mostly concerned at the fact he plans on returning just 4 days after the amputation. I also believe they will operate on other parts of the same hand.
Lawyer: Dwayne B., Attorney replied 1 month ago

Some people are able to return to work that quickly and some aren't. Certainly I would think it would take longer than that for pain reasons if nothing else. You can't make blanket assumptions as to this employee's condition.

Do you have written guidelines for how you are to handle injured employees who were not injured on the job? How to handle disabilities, etc?

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Customer reply replied 1 month ago
I just see the high probability of compounding the disability with a workman’s comp claim if he hurts himself or others. These guys hang from the rafters with harnesses and are up on lifts. I am an owner and a technician and I know I would not be able to do it with a mangled hand.
Lawyer: Dwayne B., Attorney replied 1 month ago

That may be true, but if you get sued you can guarantee that the lawyer will present experts who will testify that it can be done, what accommodations could have been made, etc.

You are certainly within your rights to be sure there is a doctor's release. However, the request must be made using the right language to be sure it is viewed as concern as opposed to looking for a way to fire the employee.

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Customer reply replied 1 month ago
No guildines. In 20 years we have never had the issue. With large companies we had the obligation but with small business I thought the guidelines we different. We have no obligation to hire handicapped employees as we did experience this and the job requirements were such that a person could not do the job. I just find it hard to believe that if the employee was committed to a wheelchair I would have to give him his job back or he could sue.
Customer reply replied 1 month ago
The language is “reasonable” accommodations. Giving someone a job they can not perform certainly is not reasonable
Lawyer: Dwayne B., Attorney replied 1 month ago

You don't necessarily have to give them their job back but you do have to consider giving them the job back and look into ways that they may be able to do their job, in your example, from their wheelchair. For instance, a UPS driver and delivery person wouldn't be able to do their job from a wheelchair. However, a person who was an attendant at the popcorn counter in a movie theater might be able to do their job if the counter was lowered, etc.

You also have to remember that the chances of you getting an employer on a jury are low whereas the chances of getting employees on a jury are almost 100%. The employees, typically, side with an employee unless the employer did everything to see if they could reasonably accommodate the injured employee.

In a case where a person lost a finger, it will be relatively easy to find experts who will state they could still do their job with some basic changes. The loss of a finger doesn't, normally, qualify you for Social Security or private insurance disability, prevent them from being insured by your insurance company or other issues.

Also, the term disability is defined very, very broadly so the employee will almost certainly be considered disabled and then you get into what you, the employer, did to determine whether they could be reasonably accommodated.

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Customer reply replied 1 month ago
Well without my index and second finger I could not hang from rafters safely, wire up high and low voltage without damaging equipment. If we give him the job back and he has an accident will we have to pay for that too if his accident is due to the disability.
Lawyer: Dwayne B., Attorney replied 1 month ago

If he is on the job, yes. Please understand I am not saying you have to give him his job back. What I am saying is that there is a proper way to go through the procedures and make the determination, or have someone else make the determination, that he can't perform the "essential functions" of his regular job "with or without reasonable accommodations".

The key here is that you have to develop a process that is legal and then follow that process. Many people who want to go back to work, can't and that's not your fault or against the law. There is no requirement that you give him a different job, take essential duties away from the job, or anything like that.

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Customer reply replied 1 month ago
Understood but to ask him what accommodation he needs he wil not say much as he is desperate to work. Desperate people look for ways out. We had an employee get a large settlement from being in a small rear end collision in a company vehicle commuting before work hours. It just seems as a small. Business we are stuck. We have a lawyer to do the contact but he is not in today I was looking to you for details how to go about it legally knowing there is no possible legal accommodation. He will be under pain meds and he drives one of our vehicles. None of it sounds reasonable to just ask him what he needs. It sounds more reasonable to give the requirements to his doctor and have them certify his patient can do those things this close after injury and on medication.
Lawyer: Dwayne B., Attorney replied 1 month ago

The concept of giving the doctor a list of the essential functions of the job and then asking can they be done is a good one, but you want the letter to be phrased correctly. In addition, if there are government regulations, such as OSHA, which prevent the work then those can be referenced as well. A letter could even be sent to OSHA, along with a copy of the doctor's information/prognosis, asking is OSHA approves this employee doing his duties subject to the restrictions.

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Lawyer: Dwayne B., Attorney replied 1 month ago

I have explained how to "go about it legally", but you need your company lawyer who can do a full interview about the job and the work actually draft the letters and other documents. As the website points out when you sign up, there is no attorney-client relationship formed here, which is necessary to have a number of protections in place, including you being questioned about the lawyer's adivce to you.

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Lawyer: Dwayne B., Attorney replied 1 month ago

I'm going to be offline for a little while but feel free to post any additional questions and I will pick them up when I return

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Lawyer: Dwayne B., Attorney replied 1 month ago

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