But What If They Get Hurt Again?
I get calls about this scenario at least once a week:
“I have an employee with permanent work restrictions. Do I have to take them back if I think they are going to get hurt again?”
Let’s talk about what happens when an employee has finally reached MMI: Maximum Medical Improvement.
MMI does not mean someone is “cured”. It just means this is about as much as the individual is going to recover with active treatment, and they’ve hit a recovery plateau. Some people are able to regain full function by the time they are MMI and they can return to work full duty.
But some people will have a permanent impairment, and will require permanent work restrictions.
Even if the employer is able to accommodate the permanent work restrictions, they often express concerns about re-injuries and future workers’ comp claims. It's important to note that the risk of reinjury is not, in and of itself, a valid reason to deny an accommodation request.
In fact, the EEOC addresses this in their FAQ page:
You cannot refuse to hire or fire an individual because of a slightly increased risk of harm to himself or others. Nor can you do so based on a speculative or remote risk. The determination that an individual poses a direct threat must be based on objective, factual evidence regarding the individual's present ability to perform essential job functions.
Your threshold for refusing an accommodation is objective, factual evidence that accommodating the restrictions outlined by a physician would result in significant risk.
So, what counts as objective, factual evidence? Well, it certainly isn't your opinion that's for sure.
Instead, you're going to call in the big guns: A Fit for Duty Medical Evaluation.
A few tips about Fit for Duty Evals:
· This is coming out of your pocket. This evaluation is not billed out of the workers’ comp claim.
· The Fit for Duty Evaluation is an independent evaluation. Once you get the result, you’re stuck with the result.
· Don’t ask your occupational clinic to perform the Fit for Duty Evaluation. I know that you built a relationship with your occupational clinic. You trust the doctors at your occupational clinic. You may have been doing business with them for a long time. This is precisely the problem. If the employee litigates and the outcome of the evaluation is challenged, they're going to attack the credibility of the evaluator by saying you have an ongoing business relationship with the clinic, and as a result, the clinic is biased to give you a finding that is favorable to you.
· If you are thinking of pursuing a Fit for Duty Evaluation, make sure to loop in your employment liability attorney. Compliance with the ADA and liability for failure to accommodate falls outside of workers’ compensation. This is employment law, and you'll need to consult with an attorney who specializes in employment law.
If you’re looking for recommendations on which Fit for Duty evaluators to use, ask your employment liability defense counsel for recommendations. They will be the ones who will be defending you in the event that the employee litigates.
