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  #1  
Old 02-03-2008, 07:39 PM
rob0225 rob0225 is offline
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Default workers Comp claim

I had an employee who has been with us for two weeks. She was cutting cheese on a meat slicer and cut the very tip of her finger off. She was trained on using the slicer and basically the only way she could have cut her finger is if she was not using it properly.

Am I required to cover this through my worker's comp insurance if she was the cause of the accident?

She was given an ok to return to work from the doctor but her restrictions will not allow her to do anything.

I want to terminate her (we were planning on it anyway). Do I have anything to be concerned about legally if I terminate her at this point?

What am I required to do as far as her limitations? She can't perform her duties with the limitations given her and I'm not going to pay her to come in and stand around. I need to hire a new employee to replace her.

Thanks,

Robert
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  #2  
Old 02-03-2008, 09:25 PM
Steve B Steve B is offline
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Wow - That's a really tough break for her. How unfortunate.

The Worker's Comp. folks will not care if she was following procedure or not. That is what the insurance is for and her medical will certainly be covered. This could vary by state, but I seriously doubt there is any state that wouldn't pay this claim.

You better have your ducks in a row regarding the termination. Was she ever given any warnings for the behaviors that caused your position that she was going to be terminated anyway? If she was going to be terminated anyway - why didn't you terminate her? It's not going to sound very good when you make your case in front of the judge or jury.

Now, on the other hand, if you told me that she was given a final warning for failing to follow procedures - then my position would be that you definitely would need to terminate her for failing to follow prodedure in this case. But, you didn't state it that way, and I'm guessing that wasn't the case.

Retaliating against an employee for filing a Worker's Comp claim would be VERY costly. You will want to give a very thorough analysis of this before terminating her - I'm guessing you shouldn't. Seek legal advice if you think you have a case to terminate her for this last incident.

Regarding her limitations - you don't have to make a position for her if it doesn't add value. You may or may not have to hold her job open depending on if you are covered by FMLA or not (depending on the size of your company).

Knowing what state you are in and how many employees you will have will be required to give a firm answer.
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  #3  
Old 02-03-2008, 10:43 PM
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Again, this varies state to state. Here in VA we have 30 WORKING days when we can cut someone loose with no consequences.

You are really talking about two seperate things here. Workers Comp and Unemployment.

Generally, if they have not worked the minimum number of days, they cannot file or if they do the previous employer is the one who gets hit for the unemployment.

As always on matters such as these, particularly with different states having different laws, you should talk to an attorney with experience in the field. Never make a major move such as this on what you hear on a forum.
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Old 02-04-2008, 03:57 AM
Steve B Steve B is offline
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Having this employee receive unemployment benefits is the least of his worries here. After being employed with him for just a couple weeks - his liability would be very small. Paying a huge settlement on a lawsuit is the bigger concern.

The 30 day minimum in VA is referring to unemployment benefits. It does not protect you from firing someone for illegal reasons within the first 30 days (Race, Sex, National Origin, Disability, in retaliation for filing a Worker's Comp case etc.).
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Old 02-04-2008, 07:55 AM
rob0225 rob0225 is offline
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FMLA does not apply as we are only 5 employees.

My wife has spoken with her on several occassions for not following procedures on other things but nothing in writing. The dya this happenned my wife was going to talk to her and give her 1 week to fall in line. This happenned before she had the opportunity.

Kentucky is a right to work state so do I have to have a reason to terminate her? The termination is not in response to her filing a worker's comp claim, it's because she is an idiot. The slicer has so many safeties incorporated the only way she could have cut herself was to put her hand where it didn't belong.

What do I need to do legally as far as her employment? Is she required to give updates? How often?

Would the safe thing to do is wait out her limitation restrictions and give her a couple weeks when she comes back and then fire her in order to be safe?

Thanks,

Robert
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  #6  
Old 02-04-2008, 09:29 AM
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Talk to a lawyer. Even if it costs you no money in the end, you can spend a lot of time in hearings and court rooms. Pay someone with the answers and let them handle it.

Do not rely on a forum for such a situation.

Steve, concerning a lawsuit, the deep pockets will bring in the slicer manufacturer, I would think.

Rob, rush right out and buy a pack of Employee Warning duplicate forms. Fill them out and have them signed by the employee. CYA.

Also have a WRITTEN policy - so many 3? warnings within xx months is cause for dismissal. CYA.

BTW, I have fired employees for refusing to sign the warnings and been upheld by the VA Employment folks.
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Old 02-04-2008, 09:09 PM
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[As noted, you really should consult with an attorney.]

This is a work-related injury, why wouldn't you have to cover it? It is almost always the fault of the employee for worker's comp cases because it's based on a mistake they made. She is entitled to the benefits, and terminating her because of it will almost certainly lead to a lawsuit.

Be careful with how you terminate her as well. As this company is small, she may feel that it is still retaliation because of the worker's compensation claim. As noted above, a judge (or more likely than not a jury) would decide this. The cost of having to defend yourself will probably be more aggravation that what it's worth.

Granted she is an employee at will, no court would allow you to fire her for filing a worker's compensation claim. In court, if that side seems more believable, then you'd be SOL.
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  #8  
Old 02-05-2008, 05:48 AM
Steve B Steve B is offline
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Glad to know what state we are talking about. I was an HR manager for a large manufacturing company in Kentucky until I left to do my business full-time a couple years ago. You may want to PM me or call me directly if you want to discuss. My phone number is on my website.

Since you never had that final warning with her, your best bet is to bring her back. Then, treat her like you would any other employee that did not get hurt at work. Kentucky does allow you to follow the employment-at-will doctrine (you do not officially have to have a reason to fire her), but the burdon is always on the employer to prove the motivation was not for an illegal reason. Your proof is very weak at this point since you didn't document your discussions and the accident prevented you from delivering the final warning. Think of it from a judge's perspective. Your position is going to be that she was an idiot (with references to discussions that were not documented) and she is going to say it was because you don't like it when employees file worer's comp claims. Her proof will be her injury (hospital records and a missing fingertip), her workers comp paperwork, and her lack of a job immediately after the injury. I'm sure you can see how this would look to someone on the outside.

Pete - a person determined to litigate will often pursue every angle. Getting fired immediately after filing a worker's comp. claim will not be ignored by them or their attorney. The slicer manufacturer has probably been tested bunches of times on their product - they are probably bullet proof on this. I'm sure they are prepared to spend whatever it takes to defend it due to preventing precedent for future injuries. I'm guessing t would be tough to find an attorney that will think going after the manufacturer is a good use of their time.

Here is one final caveat. You will look extremely bad if there could be a perception that you are building a case against her when she gets back - just to fire her as a result of this incident. You should make an honest attempt to bring her back and give her every opportunity to be successful. You must have seen something positive when you hired her. If she still fails after you give her a legitimate chance, then you have to do what is necessary to move your organization forward.
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  #9  
Old 02-07-2008, 10:00 AM
rob0225 rob0225 is offline
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This is my path foward:

I called her yesterday and left a message (recorded) telling her she needs to report to work Monday @ 6am. We have made some changes on how we are operating(for our benefit and not hers btw) and we will be able to work her within her limitations.

We will give her an honest opportunity without gunning for her. If things work out fine, if not she's gone.

What if she doesn't return my call or show up for work on Monday morning?
Would it benefit me to send it to her via certified mail as well?

Thanks,

Robert
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  #10  
Old 02-07-2008, 10:05 AM
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Robert,

Give her a call just to follow up if she doesn't, which may happen.

Follow whatever procedure you'd otherwise follow if she doesn't show up Monday morning. If an employee normally would receive a written warning (or such), just follow that procedure. You'd think a person would have the decency to at least say I'm not coming in, but that's not always the case.
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