Human Resource Blog

Kansas Workers Comp

We are located in the state of Kansas and have an employee that claimed a workers comp injury August, 2008.

The employee had a sprained knee.  The employee has since had two surgeries and has now been told that they will have some permanent limitations.  The restrictions that they has been given will not allow them to return to their original position.  We do not have work that they will be able to perform.  The employee has been released to return tom work with restrictions.  The insurance company will be attempting to settle with the employee.

So here is my question. It has now bee 11 months and we simply do not have any work for this employee and by no fault of the employee we have had to down size. (We have not laid anyone off but we are not replacing positions as the quit)

We just do not have the finances to invent a job that the employee will be able to perform.

Based on the restrictions we will need to terminate the employee.  Can you advice the best and proper way to handle this?  The employee has not kept us updated.  I have had to call the insurance company to receive most of the information.  The insurance company will be sending me the paperwork showing the release to return to work.

Any advice would be helpful.

Thank you

 

There are several issues here that need to be considered, so you may want to consult with an attorney specializing in workers comp issues.

First of all, it appears that this condition is a permanent disability, so the emplyoee is covered under ADA, the Americans with Disabilities Act. If the employee is able to perform his or her primary job duties with a reasonable accommodation, then you are legally obligated to make that accommodation. The employee does not have to be able to perform 100% of the duties of his or her job. However, if the employee cannot perform the primary duties of his or her job, even with an accommodation, then you are under no obligation to return the employee to work. Search our archives for more info on ADA.

From a workers comp perspective, you would be better off returning this employee to work. If the employee is not returned to work, that will increase your workers comp premiums for many years. The total cost will probably be much greater than if you returned the employee to work. But it sounds like you are just not in a financial position to do so.

But much of this is based on hearsay. You should contact the employee and have him or her bring in a doctors note specifying which duties the employee cannot perform. Obviously, if you have a suitable job you should place the employee in it. But if no suitable job exists, you are not obligated to invent one. Send the employee a certified letter that you have learned he is able to return to work with restrictions, and give a date by which he must contact you.