Employee Non-Work Related Injury

September 3,2022 at 1:35PM UTC

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Employee Non-Work Related Injury

*sorry this is long, just want to provide details for fair feedback.

I am a HR dept of 1 for a small business, family owned non-union, just hired 3 months ago. One of hourly employees reported to his supv that he had a motor accident outside of work. He called off the next day due to soreness (Monday). He returned to work and was in a lot of pain but made it slowly through his day (Tuesday). The next day (Wednesday) he reportedly blacked out at home and was sent to the emergency room. I was finally looped in (almost a week later). Because of his job (working with machines and hand tools; manufacturing environment), and him blacking out I informed the employee and management team that he will need a fully release to return to work. The employee provided documents of an emergency visit but it was vague and only mentioned he should follow up with his PCP, rest and take the medication prescribed to him. Since the employee did not have a PCP, he was unable to get an appt until 3 weeks later. Which we accommodated because we used his PTO to cover his absence (he’s not eligible for FMLA and the company currently does not have a personal leave policy). I hadn’t sent STD because it hadn’t been 8 days yet, but I later did send. Then on the day of his appt, he sends me an email that morning showing it was rescheduled out for another 3 weeks. At this time, we still don’t know what’s wrong with him and we don’t want to take the risk of having him return to work in his condition and be in a heavy machinery environment (he was on strong medication). The employee did move with applying for STD. By his next appt he has exhausted all his availability PTO, and the doctor sends a vague note simply stating “in his medical opinion the employee should stay off of work until 10/1/2022.” We don’t have the manpower to grant additional accommodations for time off that far out given the employee been off since July 14, 2022 and haven’t submitted any medical paperwork from his visits or anything (which we requested from the employee). He mentioned he has therapy f/u appts but all this communication has been verbal. And he has not paid any of his mthly medical premiums.

His supervisor does not want him back, because he mentioned he was already low performing but it had not been documented. The employee tenure is 8 months. We don’t have a personal leave policy (I’m working on SOPs and HR policies, they never had an HR dept. before). I believe the accommodations we granted him and using his PTO would be sufficient on our end and we can move with replacing his position.

But what are some options to transition the employee out of the company, without violating any ADA laws?

Can we request additional medical paperwork to support him being out?

Or just send him a letter informing him due to operational needs we will replace his position and he can reapply once he submit a medical release that he’s fully released? What all should be included in a letter to the employee?

Thank you any advice, feedback or suggestions.

~ Ms Tee

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AnonymousSeptember 3,2022 at 4:56PM UTC
I can only respond in generalities. If your company is not large enough to be covered under the federal Family Medical Leave Act (always check the law) then there is *no federally guaranteed right to medical leave of absence.* If a company is large enough to fall under the federal Family Medical Leave Act but the employee has not accrued enough work hours to qualify, there is *no federally guaranteed right to medical leave of absence.*
If the employee does not qualify for FMLA and has exceeded their PTO, they can be terminated. They are terminated not for a medical condition or disability but for exceed PTO.
Something to ask yourself: have you sent the employee a letter notifying the employee that they have exhausted their PTO and do not qualify for other leave?
Always follow up any conversation by putting it in writing to the employee, especially if you are requesting documentation, notifying them of policies, etc. This demonstrates you communicated the information to the employee.
For example, if you require an employee to submit medical documentation for a legitimate employment purpose, always make sure you put the request in writing. However, if a medical provider indicates an individual is unable to work for a medical purpose, you have no legitimate reason to ask for specific details about a person’s medical condition.
You *can* ask an employee for medical documentation *if* an individual is able to work and is requesting a reasonable accommodation for a disability. You could inquire further about their medical condition as it relates to the requested accommodation and the employee’s ability to perform the required work tasks.
You *can* ask an employee for a medical return to work note prior to allowing an employee to return work.
Always provide a copy of employment policies and, if possible, training to employees. Ensure supervision stays up to date and follows the policies.
Planning to discharge / terminate an individual for poor performance without having documented performance deficiencies is *always risky*. How do you prove the supervisor discharged an employee for reasons unrelated to the ADA unless you have documentation? This is true whether considering the ADA or any other employment law.
I hope this helps?
Lara Ivey KauchakSeptember 3,2022 at 9:12PM UTC
Great answer!
TLSeptember 4,2022 at 6:29PM UTC
Thank you. This is good info. Much of which im familiar with but you added some great insight and lots details which is good food for thought for me. I am very appreciative of you le response.
AnonymousSeptember 4,2022 at 10:10PM UTC
Did he sign an "at will" agreement which gives an employer to terminate at will?
In all seriousness, not having a PCP is a lame excuse to not get a doctor to evaluate him to determine if he is stable to go to work. You should have a written list of questions you can have him provide to the doctor to look into. He should find the nearest doctor in his vicinity even if out of pocket to get confirmation if that is what it takes to legitimize him being in a healthy state to work. Its not only about him its also about him not being a danger to others.
I think you and the mgr did the best you could. If the PCP feedback is too vague, have a list of items you need the doctor to confirm that he is fit to work and give a deadline of when you need to receive it by and the consequence for if it is not received by the certain time.
Have the manager document what he remembers for instances of poor performance and log it for your records. During the next performance review, make sure the manager brings up the low performance, so he cannot say he was never made aware of it.
TLSeptember 5,2022 at 12:42AM UTC
Hi there, my state (Michigan) is at will. And yes, it is about him being a danger to not only himself but others. I am in the process of working with managers to document document document all performance concerns and communicate them to employees. This is one of my goals as the new HR person, which is to o develop processes to protect the company from illegal or harmful practices. I will be sending the employee a letter via mail about his status of employment and that he will be able to reapply once he’s cleared to fully return…I just didn’t know how to include in the letter that “we will fill his position and he can reapply once fully cleared to return” given that his doctor letter has him off of work with a specific date 10/1/22). We don’t have the manpower to accommodate that timeframe. We are not terming him due to his medical, it would be because we are unable to accommodate additional time off due to operational needs and he’s not FMLA eligible & has exhausted his PTO.